AUTHOR’S NOTE Prior to my seminar at Campo, Colorado in June of 2001, only a few people knew

my story. To bring all readers “up to speed” on what makes Richard Luke “tick,” I’ll give

a brief rehash. My struggles with the legal industry began in 1986. I concluded that the

only way I was going to survive the monstrous evil of the legal industry was to learn as

much as I could about this evil. My testament includes months and even years of feeling

that, like Dante’s sojourner; I was crossing through hell. But, by the grace of God, I not

only survived but succeeded. What I learned about the legal system in ten years left me

literally shell-shocked. Many can relate to the feelings of hopelessness, disillusion, and

despair that is part of the legal industry’s plan for you. By 1996, I had become a virtual

drop-out, feeling that the legal industry was simply too evil for normal people to contend

with. It was not so long ago, that a Patriot wrote these words: “These are the times that

try men’s souls.” It tests me to conclude that there ever was any time in the history of this

world plagued by walking demons, that the souls of good men and women were not

sorely tested. Feeling that I had done my time by fighting my own legal battles and

helping a few others, I was ready for a furlough. After all, the struggle had taken a lot

from me, the last traces of my youth had passed, my family was all to familiar with the

hollow stare in my eyes at the continuing moral outrage that is cavalierly called our

“system of law and justice,” and business ventures perished due the preoccupation of my

enlistment in the legal war. In the depths of the struggle, my children presented me with a

Christmas present. I was literally near death with the flu Christmas Eve many years ago

when I struggled to gain enough strength to open the present Amy and Ryan brought into

my bedroom. It was a small framed picture which hangs on my wall to this day and

always will as a reminder that my family knew that I had mounted the cross and born the

sacrifice to stave off the evil doers of the legal industry who literally were out to destroy

us. The picture shows a ship crossing through a hurricane – the caption reads: “Anyone

can hold the helm when the sea is calm.” I wept openly, and am still moved reflecting on

those terrible moments and knowing that I have been called to share what I have learned

with others now trapped in the struggle or enlisting themselves to help relatives and

friends. My mentor, Pat Patton, lured me to return to the war believing that I could help

people with legal problems. Pat invited me to speak at a meeting being conducted by

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Mark Mayes. Soon, I was a regular and gave the group its name, “J’Accuse.” Today

many call themselves J’Accuse members and know that we can only win this war if we

are willing to unselfishly risk our lives and fortunes just as the early Patriots did. Later,

in March of 2000, Dan Meador joined Pat in persuading me that I had a God-given duty

to help others. I protested that I had but a few wins in the court system, but it seemed that

was a few more wins than anybody else. A year later, Debra Lee persuaded some good

folks from the American Farm Ag Movement to come by a J’Accuse meeting. Those

folks were impressed enough with what they heard that they requested that I do a seminar

for them, and as the saying goes, the rest is history. Nobody knows better than I do what

a pure, living hell the legal industry has in store for us if we dare to think we are creatures

of God with God-given rights. In desperate times, people often hear the siren song of the

easy way out – the silver bullet. Unfortunately, many offering the easy way out end up

getting people in deeper trouble and many have even gone to jail as a result of the

betrayal. Many people are familiar with “the Richard Cornforth method;” but, in

actuality, I have no method. I am merely reporting on what I have learned and can

confirm that the path to winning is structurally simple – facts, law, procedure! While the

structure is simple, the struggle is great as you are going up aginst one of the greatest

evils ever conceived and dedicated in the history of the world. God does not make it easy.

God only makes it possible. The rest is up to us. Whether you’re an old hand or a

beginner, I would like to share some scriptures with you before you journey through the

pages of Secrets of the Legal Industry, version 3.0. Lord, how are they increased that

trouble me! Many are they that rise up against me. Blessed is the man that walketh not in

the counsel of the ungodly, nor standeth in the way of sinners, nor sitteth in the seat of the

scornful: But his delight is in the law of the Lord; and in his law doth he meditate day and

night. And he shall be like a tree planted by the rivers of water, that bringeth forth his

fruit in his season; his leaf also shall not wither; and whatsoever he doeth shall prosper.

Those who wait on the Lord shall renew their strength. They shall mount up with wings

like eagles. They shall run and not be weary. My defense is of God, which saveth the

upright in heart. It is God that girdeth me with strength, and maketh my way perfect. He

teacheth my hands to war.

- Richard Luke Cornforth

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TABLE OF CONTENTS SECTION ONE: Secrets of the legal industry 5 We have a two-tiered court system 5 We have a common law court system 10 The real law is found in the annotated statutes 13 There are two types of jurisdiction relating to people: personal jurisdiction and subject matter jurisdiction 14 Attorneys can’t testify. Statements of counsel in brief or in oral argument are not facts before the court 15 SECTION TWO: The law of voids 16 Everything you always wanted to know about void judgments but were afraid to ask 16 What about default judgments? 20 Reasons why subject matter jurisdiction CAN be lost 23 Summary of the principles of the doctrine or law of voids 24 Sample petitions to vacate 25 SECTON THREE: The Fair Debt Collections Practices Act 40 Overview of the Act 40 Note and contract law 42 Phone scripts 46 Letter to collector 46 Sample of suit for damages under the Act 48 SECTION FOUR: Civil litigation 50 Is your lawsuit really frivolous? 50 Have you really failed to state a claim upon which relief can be granted? 50 Sample case 51 SECTION FIVE: Appeals 54 Sample state appeal 55 Notice of appeal, federal 65 Sample federal appeal 66 SECTION SIX: Dealing with administrative authority 87 Sample suit for judicial review of administrative action 87 Priddy versus City of Tulsa 89 SECTION SEVEN: Civil rights actions 100 Malicious prosecution 100 Are judges really immune from suit? 105 Denial of remedy 110 False imprisonment / imprisonment for “contempt.” 117

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SECTION EIGHT: Attacking the internal revenue service 123 Remedies 124 Sample of suit for violation of collection practices guidelines 126 Sample suit for relief of conviction for evasion and / or willful failure 129 Sample suit for removal of trespass to title by the IRS 152 What if the IRS calls you names? 156 SECTION NINE: RICO – the ultimate weapon 158 Overview of civil rico 158 Sample civil RICO SUIT 162 SECTION TEN: Strategies 171 Supremacy and equal protection of the laws 171 Affidavits 171 Objections 173 Notice of lis pendens 174 Preliminary injunction 176 Writ of mandamus 178 Deposing them 181 Being deposed 181 Interrogatories 181 Admissions 181 Quo warranto 184 Federal tort claim 188 Can we be compelled to testify 190 Defending against a motion for summary judgment 191 Defending against a motion to dismiss 193 Assistance of counsel 196 Using a declaration 197 SECTION ELEVEN: Resources 198 SECTION TWELVE: The Political Solution 198 Happy trails and trials to you! 203 APPENDIX Application for a taxpayer’s assistance order Order vacating show cause hearing for contempt of IRS

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SECTION ONE: Secrets of the legal industry

We have a two-tiered court system. In our system, we have supreme courts and courts of

inferior jurisdiction. When we were children and learning in school, we were instructed that there are

three branches of government, the legislative, the executive, and the judicial. What we were not told was

that courts of inferior jurisdiction, regardless of their claimed origin, such as The United States

Constitution Article Three, Section one, can not be presumed to act judicially. Most courts of inferior or

limited jurisdiction have no inherent jurisdictional authority, no inherent judicial power whatsoever.

Courts of limited jurisdiction are empowered by one source: SUFFICIENCY OF PLEADINGS –

meaning one of the parties appearing before the inferior court must literally give the court its

judicial power by completing jurisdiction. Federal courts are courts of limited jurisdiction, and

may only exercise jurisdiction when specifically authorized to do so. A party seeking to invoke a

federal court's jurisdiction bears the burden of establishing that such jurisdiction exists. See Scott

v. Sandford, 60 U.S. 393 (U.S. 01/02/1856), SECURITY TRUST COMPANY v. BLACK RIVER

NATIONAL BANK (12/01/02), 187 U.S. 211, 47 L.Ed. 147, 23 S.Ct. 52, McNutt v. General Motors

Acceptance Corp., 298 U.S. 178, 189 (1936), HAGUE v. COMMITTEE FOR INDUSTRIAL

ORGANIZATION ET AL. (06/05/39), 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423, UNITED STATES v.

NEW YORK TELEPHONE CO. (12/07/77), 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed. 2d 376, CHAPMAN v.

HOUSTON WELFARE RIGHTS ORGANIZATION ET AL. (05/14/79), 441 U.S. 600, 99 S.Ct. 1905, 60

L.Ed. 2d 508, CANNON v. UNIVERSITY CHICAGO ET AL. (05/14/79), 441 U.S. 677, 99 S.Ct. 1946, 60

L.Ed. 2d 560, PATSY v. BOARD REGENTS STATE FLORIDA (06/21/82), 457 U.S. 496, 102 S.Ct.

2557, 73 L.Ed. 2d 172, MERRILL LYNCH v. CURRAN ET AL. (05/03/82), 456 U.S. 353, 102 S.Ct.

1825, 72 L.Ed. 2d 182, 50 U.S.L.W. 4457, INSURANCE CORPORATION IRELAND v. COMPAGNIE

DES BAUXITES DE GUINEE (06/01/82), 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed. 2d 492, 50 U.S.L.W.

4553, MATT T. KOKKONEN v. GUARDIAN LIFE INSURANCE COMPANY AMERICA (05/16/94), 128

L.Ed. 2d 391, 62 U.S.L.W. 4313, United States ex rel. Holmes v. Consumer Ins. Group, 279 F.3d 1245,

1249 (10th Cir. 2002), citing United States ex rel. Precision Co. v. Koch Industries, 971 F.2d 548, 551

(10th Cir. 1992). OKLAHOMA MAY SAY IT BEST! = We recognize the district court, in our

unified court system, is a court of general jurisdiction and is constitutionally endowed with

"unlimited original jurisdiction of all justiciable matters, except as otherwise provided in this

Article." Article 7, Section 7, Oklahoma Constitution. However, this "unlimited original

jurisdiction of all justiciable matters" can only be exercised by the district court through the filing

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of pleadings which are sufficient to invoke the power of the court to act. The requirement for a

verified information to confer subject matter jurisdiction on the court and empower the court to

act has been applied to both courts of record and not of record. We determine that the mandatory

language of 22 O.S. 1981 § 303 [22-303], requiring endorsement by the district attorney or

assistant district attorney and verification of the information is more than merely a "guaranty of

good faith" of the prosecution. It, in fact, is required to vest the district court with subject matter

jurisdiction, which in turn empowers the court to act. Only by the filing of an information which

complies with this mandatory statutory requirement can the district court obtain subject matter

jurisdiction in the first instance which then empowers the court to adjudicate the matters

presented to it. We therefore hold that the judgments and sentences in the District Court of Tulsa

County must be REVERSED AND REMANDED without a bar to further action in the district court in

that the unverified information failed to confer subject matter jurisdiction on the district court in the first

instance, Chandler v. State, 96 Okl.Cr. 344, 255 P.2d 299, 301-2 (1953); Smith v. State, 152 P.2d 279,

281 (Okl.Cr. 1944); City of Tulsa, 554 P.2d at 103; Nickell v. State, 562 P.2d 151 (Okl.Cr. 1977); Short

v. State, 634 P.2d 755, 757 (Okl.Cr. 1981); Byrne v. State, 620 P.2d 1328 (Okl.Cr. 1980); Laughton v.

State, 558 P.2d 1171 (Okl.Cr. 1977); and Buis v. State, 792 P.2d 427, 1990 OK CR 28 (Okla.Crim.App.

05/14/1990). To invoke the jurisdiction of the court under the declaratory judgments act there must be

an actual, existing justiciable controversy between parties having opposing interests, which interests

must be direct and substantial, and involve an actual, as distinguished from a possible, potential or

contingent dispute. Gordon v. Followell, 1964 OK 74, 391 P.2d 242. To be "justiciable," the claim must

be suitable for judicial inquiry, which requires determining whether the controversy (a) is definite and

concrete, (b) concerns legal relations among parties with adverse interests, and (c) is real and substantial

so as to be capable of a decision granting or denying specific relief of a conclusive nature." Dank v.

Benson, 2000 OK 40, 5 P.3d 1088, 1091. See also, 12 O.S. §1651. See also, Easterwood v. Choctaw

County District Attorney, 45 P.3d 436, 2002 OK CIV APP 41 (Okla. App. 01/11/2002)). Another well

spoken authority: On the date specified in the notice of hearing, all parties may appear and be heard on

all matters properly before the court which must be determined prior to the entry of the order of taking,

including the jurisdiction of the court, the sufficiency of pleadings, whether the petitioner is properly

exercising its delegated authority, and the amount to be deposited for the property sought to be

appropriated. See CITY LAKELAND v. WILLIAM O. BUNCH ET AL. (04/03/74), 293 So. 2d 66.

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I hope by now, everyone understands that a court DOES NOT GET ITS

JURISDICTIONAL AUTHORITY FROM THE FLAG THAT IS POSTED!!!! Court’s of inferior

or limited jurisdiction get their authority from ONE SOURCE AND ONLY ONE SOURCE = pleadings

sufficient to empower the court to act, meaning one of the parties must give the court its power to act by

way of written and oral argument (the parties NOT THEIR ATTORNEYS MUST DO THIS!). The

following are comments by Mark Ferran. Many probably think Mark is a bit too harsh in his dissertation

on the gold-fringed flag. I asked Mark’s permission to reprint the information here and while Mark’s

tone may be harsh, I’ve been at the receiving end of far too many calls from some poor soul desperately

seeking my help in literally the last few hours before their eviction!

Let me give you some insights into the Gold-Fringed Flag fixation that some people have. I attended Law School and did very well as a law-student (graduated with high honors). Law students are given lots of law-books to read, and some of these students actually read those books. You yourselves can buy and read these books. But none of these books include any discussion of the nature of the Flag types which may exist, nor any Flag Protocols, symbology, nor anything else about the American Flag except some cases that deal with First Amendment Rights: Can students be forced to salute the Flag in school? Can people be punished for burning flags, etc. So, for the most part, the symbology (e.g., gold fringes) on an American Flag means nothing at all to any Attorney or Judge. "The nitwits have amongst themselves this strange superstition that the presence of a gold trim on a courtroom's flag somehow imposes some different sort of law than what's expected -- although they cannot get their stories straight on whether it's martial law or maritime law, the two being very different. They have absolutely no legal authority for any of this and seem to be making it up as they go along. They don't seem to have noticed that the gold trim appears only on INDOOR flags, which are made of fairly flimsy material and would hang limp and drab without either breeze or sunlight indoors, so the gold trim provides some esthetic compensation for the lack of sunlight and breeze, and that all OUTDOOR flags, even the ones at military bases and on ships, don't have this fringe, because outdoor flags are made of heavier fabric and the wind and damp would soon ruin a fringe. Back in 1925 the US Attorney-General relied on the opinion of the predecessor to the US Army's Institute of Heraldry that the fringe was not an addition or alteration of the flag, and therefore not illegal, and moreover had no symbolic meaning. Currently the Institute of Heraldry and the non-government Flag Research Center both issue fact sheets debunking this militia myth about the fringe on the flag. There apparently has NEVER been a successful challenge to a court's decision or jurisdiction based on the absence of a correct flag or the presence of an "incorrect" flag in the courtroom." http://www.adl.org/mwd/sussman.doc

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You can change the flag displayed in the Courtroom every five minutes, or once an hour, all day long. That won't change the behavior of the Judge, nor will it affect the finality or gravity of the result of the proceeding. Nobody on the other side of the "BAR" cares at all what the flag looks like or whether it has a gold fringe on it. Noone within the "Law Profession", whose primary interest is extracting money from the general population, cares anything at all about how the Judge or the Court room is dressed, except to the extent that appearances make a good impression on the slobs who are paying attorneys for "Justice." Whitewashed Tombs are more saleable than tombs appearing in their natural state of decay and rot and stench. If any typical attorney ever even noticed a gold-fringe on a flag in the court room, it would mean nothing more to him than a suggestion of what he was there For (Money) after all, and he would wish the fringe was real gold so he could cut a gold tassle or two off it during an intermission. Haskins v. Wilbert (D Kan unpub 11/5/97) ("Judge Wilbert's jurisdiction is in no way predicated on ... the design of the US flag."); US v. Greenstreet (ND Tex 1996) 912 F.Supp 224 ("decor is not a determinant for jurisdiction"); Huebner v. State (Tex.App unpub 5/8/97); State v. Martz (Ohio App unpub 6/9/97); (tried to sue judge for not removing fringed flag nor installing "a flag that met plaintiffs' specifications"; court imposed Rule 11 fine of $1,000); Wyatt v. Kelly, Chief Bankruptcy Judge (WD Texas unpub 3/23/98) 44 USPQ2d 1578, 81 AFTR2d 1463, 98 USTC para 50326; (trying to sue a town official and a judge for "accepting" a fringed US flag supposedly thereby "suppressing" the perp's rights) Marion v. Marion (Conn.Super. unpub 6/18/98) http://www.adl.org/mwd/sussman.doc The idea that only "IF the fringe is not there you can demand that you be under Constitutional Law," but that if a fringe is present in the room, you need not bother to demand respect for your rights under the Constitution and the Laws is ABSOLUTELY INSANE AND SELF-DESTRUCTIVE. Any private citizen who fixates upon the fringes upon the flag in a courtroom, or whether the Judge is wearing a whig or not, INSTEAD OF HIS OWN LEGAL RIGHTS UNDER THE WRITTEN LAWS AND THE CONSTITUTION, is simply a FOOL who is probably not worthy to live as a free man in a republic in the first place. That is certainly the view that many judges and attorneys will take after being bothered or harassed by the "flag-fringe" maniacs. Slaves always aspired to learn to Read so that they might understand and claim the rights of free men under writen laws, instead of only being able to recognize only the symbols of the authority of their masters. Fools who can read, but who ignore written laws, choosing instead to fixate on symbols, are practically inviting their own enslavement. Judges and attorneys against them will take advantage of their foolish fixations to strip them of rights and property that they might have held onto if only they had instead fixated upon the Law, the Facts, and the Merits of their claims or defenses: In G.D. Fowler v. State (Ark.App 1999), 67 Ark.App 114, 992 SW 2d 804, "the defendant's objection to the fringed flag was emphasized by the prosecution during cross-examination, and similarly during the cross-examination of the defendant's fellow

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militia group members, and on appeal the exploitation of the defendant's objection to the courtroom flag was held to be so prejudicial, because it was calculated to arouse the jury's hostility to the defendant, that the conviction was overturned. http://www.adl.org/mwd/sussman.doc Some people truly deserve to be convicted of offenses, or to have their completely stupid lawsuits thrown out of Courts of Law, and when they are disposed of in that proper manner, some of those will try to blame the result on things like the fringes of the flag: ("The complaint will be dismissed not because this court operates under the regal splendor of a gold fringed flag, but because the complaint is legally absurd.") Ch.H. Cass v. R.J. Reynolds Tobacco Co, (MDNC unpub 10/1/98), 82 AFTR2d 6967. You can heed my warnings (www.billstclair.com/ferran ), and/or the Warnings from the Courts themselves, or you can continue to fixate on symbology and "fringe" ideas. It won't hurt me immediately if you destroy yourselves, but the more flag-fixated people you lead to slaughter, the more emboldened the lawless among our Judges and Prosecutors will become. So, consider the impact that your self-destruction will have upon others before you choose your fixation. Consider the slaughter that has already happened to flag-fixated fools in the Courts: "XIII. The Flag Issue: A current popular argument is that the gold fringed flag indicates the admiralty jurisdiction of the court. Naturally, pro se’s have made this argument and lost: 1. Vella v. McCammon, 671 F.Supp. 1128, 1129 (S.D. Tex. 1987) (the argument has "no arguable basis in law or fact") 2. Comm. v. Appel, 652 A.2d 341, 343 (Pa.Super. 1994) (the contention is a "preposterous claim") 3. United States v. Schiefen, 926 F.Supp. 877, 884 (D.S.D. 1995): in this case, the CFR cross reference index argument, and those regarding the UCC, common law courts and the flag issue were rejected. http://freedomlaw.com/dismyths.html "Judge Wilbert's jurisdiction is in no way predicated on ... the design of the US flag." Haskins v. Wilbert (D Kan unpub 11/5/97). See also: http://www.adl.org/mwd/sussman.doc See also: "BRITISH ACCREDITED REGISTRY" at http://home.hiwaay.net/~becraft/BAR.html

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We have a common law court system. There are two basic forms of law in the world – code

law and common law. Code law means that the law as written is the law. Unfortunately, code has to be

continually expanded by legislative authority. The so-called Internal Revenue Service Code is an

attempt to impose code law over common law – the results are disastrous! Common law means that you

can’t read any statute, rule, or law, for that matter, any constitutional article and tell what it means on its

face. A common law system means that what any statute, rule, law, or constitutional law means is

determined by the highest court of competent jurisdiction in their most recent ruling. In America, only

Louisiana uses a code law system.

DEVELOPMENT OF THE COMMON-LAW COURT SYSTEM IN AMERICA

The Supreme Court is a common-law court that operates in a system that has little “federal

common law.” Yet its common-law nature is important to the Court’s functioning as a constitutional

arbiter. “Common law is a system of law made not by legislatures but by courts and judges. Although

often called “unwritten law,” the phrase actually refers only to the source of law, which is presumed to

be universal custom, reason, or “natural law.” In common law, the substance of the law is to be found

in the published reports of court decisions. Two points are critical to the workings of a common-law

system. First, law emerges only through litigation about actual controversies. Second, precedent guides

courts: holdings in a case must follow previous rulings, if the facts are identical. This is the

principle of stare decisis. But subsequent cases can also change the law. If the facts of a new case are

distinguishable, a new rule can emerge. And sometimes, if the grounds of a precedent are seen to be

wrong, the holding can be overruled by later courts.

When the Constitution was drafted, American society was infused with common-law ideas.

Common law originated in the medieval English royal courts. By 1776, it had been received in all the

British colonies. The revolutionary experience heightened Americans’ adherence to common law,

especially to the idea that the principle embodied in the common law controlled the government. While

there is no express provision in the Constitution stating that the Supreme Court is a common-law court,

Article III divides the jurisdiction of federal courts into law (meaning common law), equity, and

admiralty. The Philadelphia Convention of 1787 rejected language that would limit federal

jurisdiction to matter controlled by congressional statute. Thus, the Constitution implicitly

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recognizes the Supreme Court as a common-law court, as does the Seventh Amendment in the Bill

of Rights.

The Constitution left open the question whether there was a federal common law. The Supreme

Court first held, in United State v. Hudson and Goodwin (1812), that there is no federal common law of

crimes, and then, in Wheaton v. Peters (1834), that there is no federal civil common law. But in Swift v.

Tyson (1842), the Court permitted lower federal courts to decide commercial law questions on the basis

of “the general principles and doctrines of commercial jurisprudence,” thus opening the door to later

growth of a general federal common law. A century later, the Court put a stop to this development in

Erie Railroad v. Thompkins (1938) by declaring Swift unconstitutional. (Yet, at the same time, it

acknowledged the existence of bodies of specialized federal common law, such as, for example, it

refuses to render advisory opinions, waiting instead for litigants to bring issues before it. Precedent

shapes the Court’s power of judicial review; because of it, any ruling of the Court is a precedent

for similar cases. Thus, if one state’s law is held unconstitutional, all similar statutes in other

states are unconstitutional, a point the Court was obliged to underscore forcibly in Cooper v. Aaron

(1958) in the face of intransigent southern resistance to the Court’s holding in Brown v. Board of

Education (1954).

The Fourteenth Amendment

Under Article I, section 2, of the Constitution, a slave had been counted as three-fifths of a

person for purposes of representation. Southern states expected a substantial increase in their

representation in the House of Representatives after the Civil War. The Union, having won the war,

might lose the peace. Before the war, southern states suppressed fundamental rights, including free

speech and press in order to protect the institution of slavery. Though the Supreme Court had ruled in

1833 in Baron v. Baltimore that guarantees of the Bill of Rights did not limit the states, many

Republicans thought state officials were obligated to respect those guarantees. The Fourteenth

Amendment prohibited states from abridging privileges and immunities of citizens of the United States

and from depriving persons of due process of law or equal protection of the laws. Early interpretations

of the Fourteenth Amendment drastically curtailed the protection afforded by the amendment. Decisions

such as Twinin v. New Jersey in 1908 and Gitlow v. New York in 1925 expanded the Fourteenth

Amendment to the Bill of Rights meaning that Federal protections applied to protect the individual from

trespass on God-given rights by states. Supreme Court decisions have also brought offense to rights

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done under color of law by private persons within reach of Federal protection. Source – The Oxford

Companion To The Supreme Court of The United States

The essence of the Fourteenth Amendment in a Nutshell

The Constitution of the United States was written to protect us from intrusion on our God Given

Rights by the Federal Government. The Fourteenth Amendment was necessary to protect us from

intrusion on our God Given Rights by state governments, political subunits, and individuals who act

under color of law. The Fourteenth Amendment, contrary to what some believe takes no rights away.

In fact, the Fourteenth Amendment is one of the most valuable legal tools we have at our disposal.

Some Patriots have been misled with an argument that the Fourteenth Amendmant makes them inferior

citizens. This propaganda originates from the belief that Lincoln “enslaved us all” by declaring martial

law. In truth and reality, Lincoln’s order invoking martial law was revoked by then Chief Justice Taney.

Roger Brooke Taney was fingered as a bad guy as a result of the Dred Scott decision. Taney, like many

others was a product of history. Taney’s ruling in Scott was based on the fact that Taney was a strict

constuctionist, believing that the Constitution pretty well says what it says and was reticent to be too

creative with Constitutional interpretation. Simply put, Taney believed slaves were property and

maintained the Constitution’s protection of private property ownership warranted a constitutional

amendmant if slaves were to be granted rights as citizens. Taney’s revocation of Lincoln’s order of

marshall law fomented a Constitutional crisis in as much as Lincoln regarded Taney as a usurper of

Presidential power claiming Taney had no authority to revoke his declaration of marshall law absent a

case being presented to the court. After Lincoln’s death, the Supreme Court removed all doubt in Ex

Parte Milligan, 71 U.S. 2 (1866), ending any presumption that Lincoln had “made us all inferior

citizens.” The holding in Milligan = “The Constitution was not suspended in time of emergency. The

Constitution was a law for rulers and people, equally in time of war and peace; therefore, the military

trial of civilians which violated constitutional guarantees of indictment by grand jury and public trial by

an impartial jury was impermissible where the civil courts remained open. Neither the president nor

Congress can authorize the trial of civilians by military commission as long as the civil courts were

open.” Patriots due ill to the cause and obstruct justice for themselves by buying into the falsehoods

surrounding the Fourteenth Amendmant.

WORKBOOK ASSIGNMENT: Define “color of law.” _______________________________________

____________________________________________________________________________________

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What law is found at 5 USC 3331 and explain the significance of that law ________________________

___________________________________________________________________________________

What about 28 USC 453? 5 USC 2906? ________________________________________________

____________________________________________________________________________________

____________________________________________________________________________________

UNITED STATES CONSITUTIONAL AMENDMENT VII = In suits at common law, where

the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no

fact tried by a jury shall be otherwise re-examined in any court of the Untied States, than according to

the rules of the common law.

Federal courts, in adopting rules, are not free to extend the judicial power of the United States

described in Article III of the Constitution. Willy v. Coastal Corp., 503 U.S. 131, 135 (1992). Rule

28A(i) allows courts to ignore this limit. If we mark an opinion as unpublished, Rule 28A(i) provides

that is not precedent. Though prior decisions may be well-considered and directly on point, Rule 28A(i)

allows us to depart from the law set out in such prior decisions without any reason to differentiate the

cases. This discretion is completely inconsistent with the doctrine of precedent; even in constitutional

cases, courts “have always required a departure from precedent to be supported by some ‘special

justification.’ “United States v. International Business Machines Corp., 517 U.S. 843, 856 (1996),

quoting Payne v. Tennessee, 501 U.S. 808, 842 (1991) (Souter, J., concurring). Rule 28A(i) expands the

judicial power beyond the limits set by article III by allowing us complete discretion to determine which

judicial decisions will bind us and which will not. Insofar as it limits the precedential effect of our prior

decisions, the Rule is therefore unconstitutional, Anastasoff v. United States of America, 223 F.3d 898

(8th Cir. 2000).

The real law is found in the annotated statutes: The importance of annotated law: (1). It is

organized. (2). It is abbreviated (you don’t need to read the whole case). (3). The “holdings” define

the real law. Examples of holdings: Debtor, as natural person who was obligated to pay debt to hospital for services provided in connection with her kidney infection, was "consumer" within meaning of the Fair Debt Collection Practices Act (FDCPA). Creighton v. Emporia Credit Service, Inc., E.D.Va.1997, 981 F.Supp. 411.

14

Patient who had received medical services on credit, and who was primarily responsible for payment of account at medical center, qualified as "consumer" under the Fair Debt Collection Practices Act (FDCPA). Adams v. Law Offices of Stuckert & Yates, E.D.Pa.1996, 926 F.Supp. 521. Fair Debt Collection Practices Act, establishing liability of debt collector who fails to comply with the Act "with respect to any person," does not limit recovery to "consumers," and thus would not preclude recovery by person to whom debt collector sent letter seeking to collect debt of such person's deceased father even if such person were not a consumer; but, in any event, such person was a "consumer" when collectors admittedly demanded payment of debt from him. Dutton v. Wolhar, D.Del.1992, 809 F.Supp. 1130. Unpaid administrative and other fees charged under rental agreement by automobile and truck rental company in event of accident constituted "debt" under Fair Debt Collection Practices Act. Brown v. Budget Rent-A-Car Systems, Inc., C.A.11 (Fla.) 1997, 119 F.3d 922. Workbook assignment: Visit a law library. Find the Federal Annotated Statutes and your State’s annotated statutes or code. Copy an annotated section from each. Write a summary of the real law regarding the statute.

There are a two types of jurisdiction relating to people. Personal jurisdiction is lawfully

exercised over a defendant if the person lives in a jurisdiction, operates a business in a jurisdiction, owns

property in a jurisdiction, or commits an injury in a jurisdiction, and has had notice and opportunity free

of fraud or mistake (is in receipt of service and has a copy of the petition, claim, or complaint). If these

elements are complete, personal jurisdiction CANNOT BE DENIED. Even if these elements are

lacking, personal jurisdiction can be waived by appearance, excepting a person, not represented by

counsel entering a special appearance for the purpose of challenging the court’s personal jurisdiction.

Subject matter jurisdiction is the court’s power to hear and determine cases of the general class or

category to which proceedings in question belong; the power to deal with the general subject involved in

the action. Subject matter jurisdiction can never be waived, cannot attach by mutual consent of the

parties, or through lapse of time or course of events other than sufficient pleadings. Once established,

subject matter jurisdiction CAN be lost. When subject matter jurisdiction is challenged, the party

asserting that the court has subject matter jurisdiction has the burden of showing that it exists on the

record. Once the court has knowledge that subject matter is lacking, the court (meaning the judge) has

no discretion but to dismiss the action. Failure to dismiss means that the court is proceeding in clear

absence of all jurisdiction and subjects the judge to suit. Contemplation of subject matter jurisdiction

harkens to the memory of Vince Lombardi, who when asked if winning was everything replied,

“winning is the only thing.” Personal jurisdiction is not usually an issue, but subject matter jurisdiction

is always, always an issue! Subject matter jurisdiction is not everything, it’s the only thing!

Incidentally, in rem is the power of a court over a thing so that its jurisdiction is valid against the rights

15

of every person having an interest in the thing; quasi in rem gives the court jurisdiction over a property

interest, but only to the limit of the interest in the property and not the property entirely.

NOTE: Some contracts have a “forum selection clause” stating that if there is a controversy it will be resolved according to the law of a certain state. Is clause enforceable? Not if the clause is expressed in fine print, placed in the contract to avoid litigation, or if the forum selection clause could not have been disputed without impunity as part of a freely negotiated contract. See JOHNSON AND JOHNSON v. HOLLAND AMERICA LINE-WESTOURS, INC., 557 N.W. 2d 475. Forum selection clause must be reasonable communicate terms and be fundamentally fair, Deiro v. American Airlines, Inc., 816 F.2d 1360, 1364 (9th Cir. 1987). The forum selection clause must be “fundamentally fair.” Shute, 499 U.S. at 595, In re: Hodes, 858 F.2d at 908, and Shankles v. Costa Armatori, S.P.A., 722 F.2d 861, 866 (1st Cir. 1983).

Attorneys can’t testify. Statements of counsel in brief or in oral argument are not

facts before the court.

This finding of a continuing investigation, which forms the foundation of the majority opinion,

comes from statements of counsel made during the appellate process. As we have said of other un-

sworn statements which were not part of the record and therefore could not have been considered by the

trial court: “Manifestly, [such statements] cannot be properly considered by us in the disposition of [a)

case.” UNITED STATES v. LOVASCO (06/09/77), 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed. 2d 752.

Under no possible view, however, of the findings we are considering can they be held to constitute a

compliance with the statute, since they merely embody conflicting statements of counsel concerning the

facts as they suppose them to be and their appreciation of the law which they deem applicable, there

being, therefore, no attempt whatever to state the ultimate facts by a consideration of which we would be

able to conclude whether or not the judgment was warranted. GONZALES v. BUIST (04/01/12), 224

U.S. 126, 56 L.Ed. 693, 32 S.Ct. 463. No instruction was asked, but, as we have said, the judge told the

jury that they were to regard only the evidence admitted by him, not statements of counsel, HOLT v.

UNITED STATES (10/31/10), 218 U.S. 245, 54 L.Ed. 1021, 31 S.Ct. 2. Care has been taken, however,

in summoning witnesses to testify, to call no man whose character or whose word could be successfully

impeached by any methods known to the law. And it is remarkable, we submit, that in a case of this

magnitude, with every means and resource at their command, the complainants, after years of effort and

search in near and in the most remote paths, and in every collateral by-way, now rest the charges of

conspiracy and of gullibility against these witnesses, only upon the bare statements of counsel. The

lives of all the witnesses are clean, their characters for truth and veracity un-assailed, and the evidence

16

of any attempt to influence the memory or the impressions of any man called, cannot be successfully

pointed out in this record. TELEPHONE CASES. DOLBEAR v. AMERICAN BELL TELEPHONE

COMPANY. MOLECULAR TELEPHONE COMPANY V. AMERICAN BELL TELEPHONE

COMPANY. AMERICAN BELL TELEPHONE COMPANY V. MOLECULAR TELEPHONE

COMPANY. CLAY COMMERCIAL TELEPHONE COMPANY V. AMERICAN BELL TELEPHONE

COMPANY. PEOPLE’S TELEPHONE COMPANY V. AMERICAN BELL TELEPHONE COMPANY.

OVERLAND TELEPHONE COMPANY V. AMERICAN BELL TELEPHONE COMPANY (PART TWO

THREE) (03/19/88), 126 U.S. 1, 31 L.Ed. 863, 8 S.Ct. 778. Statements of counsel in brief or in

argument are not sufficient for motion to dismiss or for summary judgment, Trinsey v. Pagliaro, D.C.

Pa. 1964, 229 F. Supp. 647. Factual statements or documents appearing only in briefs shall not be

deemed to be a part of the record in the case, unless specifically permitted by the Court – Oklahoma

Court Rules and Procedure, Federal local rule 7.1(h).

SECTION TWO: The law of voids.

EVERYTHING YOU ALWAYS WANTED TO KNOW ABOUT

VOID JUDGMENTS BUT WERE AFRAID TO ASK!

Void judgments are those rendered by a court which lacked jurisdiction, either of the subject

matter or the parties, Wahl v. Round Valley Bank, 38 Ariz. 411, 300 P. 955 (1931); Tube City Mining &

Milling Co. v. Otterson, 16 Ariz. 305, 146 P. 203 (1914); and Milliken v. Meyer, 311 U.S. 457, 61 S.Ct.

339, 85 2d 278 (1940). A void judgment which includes judgment entered by a court which lacks

jurisdiction over the parties or the subject matter, or lacks inherent power to enter the particular

judgment, or an order procured by fraud, can be attacked at any time, in any court, either directly or

collaterally, provided that the party is properly before the court, Long v. Shorebank Development Corp.,

182 F.3d 548 (C.A. 7 Ill. 1999). A void judgment is one which, from its inception, was a complete

nullity and without legal effect, Lubben v. Selective Service System Local Bd. No. 27, 453 F.2d 645, 14

A.L.R. Fed. 298 (C.A. 1 Mass. 1972). A void judgment is one which from the beginning was complete

nullity and without any legal effect, Hobbs v. U.S. Office of Personnel Management, 485 F.Supp. 456

(M.D. Fla. 1980). Void judgment is one that, from its inception, is complete nullity and without legal

effect, Holstein v. City of Chicago, 803 F.Supp. 205, reconsideration denied, 149 F.R.D. 147, affirmed

29 F.3d 1145 (N.D. Ill 1992). Void judgment is one where court lacked personal or subject matter

jurisdiction or entry of order violated due process, U.S.C.A. Const. Amend. 5 – Triad Energy Corp. v.

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McNell, 110 F.R.D. 382 (S.D.N.Y. 1986). Judgment is a void judgment if court that rendered judgment

lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due

process, Fed. Rules Civ. Proc., Rule 60(b)(4), 28 U.S.C.A.; U.S.C.A. Const. Amend. 5 – Klugh v. U.S.,

620 F.Supp. 892 (D.S.C. 1985). A void judgment is one which, from its inception, was a complete

nullity and without legal effect, Rubin v. Johns, 109 F.R.D. 174 (D. Virgin Islands 1985). A void

judgment is one which, from its inception, is and forever continues to be absolutely null, without legal

efficacy, ineffectual to bind the parties or to support a right, of no legal force and effect whatever, and

incapable of enforcement in any manner or to any degree – Loyd v. Director, Dept. of Public Safety, 480

So.2d 577 (Ala. Civ. App. 1985). A judgment shown by evidence to be invalid for want of jurisdiction

is a void judgment or at all events has all attributes of a void judgment, City of Los Angeles v. Morgan,

234 P.2d 319 (Cal.App. 2 Dist. 1951). Void judgment which is subject to collateral attack, is simulated

judgment devoid of any potency because of jurisdictional defects, Ward v. Terriere, 386 P.2d 352 (Colo.

1963). A void judgment is a simulated judgment devoid of any potency because of jurisdictional defects

only, in the court rendering it, and defect of jurisdiction may relate to a party or parties, the subject

matter, the cause of action, the question to be determined, or relief to be granted, Davidson Chevrolet,

Inc. v. City and County of Denver, 330 P.2d 1116, certiorari denied, 79 S.Ct. 609, 359 U.S. 926, 3 2d

629 (Colo. 1958). Void judgment is one entered by court without jurisdiction of parties or subject

matter or that lacks inherent power to make or enter particular order involved and such a judgment may

be attacked at any time, either directly or collaterally, People v. Wade, 506 N.W.2d 954 (Ill. 1987).

Void judgment may be defined as one in which rendering court lacked subject matter jurisdiction, lacked

personal jurisdiction or acted in manner inconsistent with due process of law, Eckel v. MacNeal, 628

N.E.2d 741 (Ill. App. Dist. 1993). Void judgment is one entered by court without jurisdiction of parties

or subject matter or that lacks inherent power to make or enter particular order involved; such judgment

may be attacked at any time, either directly or collaterally, People v. Sales, 551 N.E.2d 1359 (Ill.App. 2

Dist. 1990). Res judicata consequences will not be applied to a void judgment which is one which, from

its inception, is a complete nullity and without legal effect, Allcock v. Allcock, 437 N.E.2d 392 (Ill. App.

3 Dist. 1982). Void judgment is one which, from its inception is complete nullity and without legal

effect, In re Marriage of Parks, 630 N.E.2d 509 (Ill.App. 5 Dist. 1994). Void judgment is one entered

by court that lacks the inherent power to make or enter the particular order involved, and it may be

attacked at any time, either directly or collaterally; such a judgment would be a nullity, People v.

Rolland, 581 N.E.2d 907, (Ill.App. 4 Dist. 1991). Void judgment under federal law is one in which

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rendering court lacked subject matter jurisdiction over dispute or jurisdiction over parties, or acted in

manner inconsistent with due process of law or otherwise acted unconstitutionally in entering judgment,

U.S.C.A. Const. Amed. 5, Hays v. Louisiana Dock Co., 452 N.E.2d 1383 (Ill. App. 5 Dist. 1983). A

void judgment has no effect whatsoever and is incapable of confirmation or ratification, Lucas v. Estate

of Stavos, 609 N. E. 2d 1114, rehearing denied, and transfer denied (Ind. App. 1 dist. 1993). Void

judgment is one that from its inception is a complete nullity and without legal effect, Stidham V.

Whelchel, 698 N.E.2d 1152 (Ind. 1998). Relief from void judgment is available when trial court lacked

either personal or subject matter jurisdiction, Dusenberry v. Dusenberry, 625 N.E.2d 458 (Ind.App. 1

Dist. 1993). Void judgment is one rendered by court which lacked personal or subject matter

jurisdiction or acted in manner inconsistent with due process, U.S.C.A. Const. Amends. 5, 14, Matter of

Marriage of Hampshire, 869 P.2d 58 (Kan. 1997). Judgment is void if court that rendered it lacked

personal or subject matter jurisdiction; void judgment is nullity and may be vacated at any time, Matter

of Marriage of Welliver, 869 P.2d 653 (Kan. 1994). A void judgment is one rendered by a court which

lacked personal or subject matter jurisdiction or acted in a manner inconsistent with due process, In re

Estate of Wells, 983 P.2d 279 (Kan. App. 1999). Void judgment is one rendered in absence of

jurisdiction over subject matter or parties, 310 N.W.2d 502, (Minn. 1981). A void judgment is one

rendered in absence of jurisdiction over subject matter or parties, Lange v. Johnson, 204 N.W.2d 205

(Minn. 1973). A void judgment is one which has merely semblance, without some essential element, as

when court purporting to render it has no jurisdiction, Mills v. Richardson, 81 S.E.2d 409 (N.C. 1954).

A void judgment is one which has a mere semblance, but is lacking in some of the essential elements

which would authorize the court to proceed to judgment, Henderson v. Henderson, 59 S.E.2d 227 (N.C.

1950). Void judgment is one entered by court without jurisdiction to enter such judgment, State v.

Blankenship, 675 N.E.2d 1303 (Ohio App. 9 Dist. 1996). Void judgment, such as may be vacated at any

time is one whose invalidity appears on face of judgment roll, Graff v. Kelly, 814 P.2d 489 (Okl. 1991).

A void judgment is one that is void on face of judgment roll, Capital Federal Savings Bank v. Bewley,

795 P.2d 1051 (Okl. 1990). Where condition of bail bond was that defendant would appear at present

term of court, judgment forfeiting bond for defendant’s bail to appear at subsequent term was a void

judgment within rule that laches does not run against a void judgment, Com. V. Miller, 150 A.2d 585

(Pa. Super. 1959). A void judgment is one in which the judgment is facially invalid because the court

lacked jurisdiction or authority to render the judgment, State v. Richie, 20 S.W.3d 624 (Tenn. 2000).

Void judgment is one which shows upon face of record want of jurisdiction in court assuming to render

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judgment, and want of jurisdiction may be either of person, subject matter generally, particular question

to be decided or relief assumed to be given, State ex rel. Dawson v. Bomar, 354 S.W.2d 763, certiorari

denied (Tenn. 1962). A void judgment is one which shows upon face of record a want of jurisdiction in

court assuming to render the judgment, Underwood v. Brown, 244 S.W.2d 168 (Tenn. 1951). A void

judgment is one which shows on face of record the want of jurisdiction in court assuming to render

judgment, which want of jurisdiction may be either of the person, or of the subject matter generally, or

of the particular question attempted to be decided or relief assumed to be given, Richardson v. Mitchell,

237 S.W.2d 577 (Tenn.Ct. App. 1950). Void judgment is one which has no legal force or effect

whatever, it is an absolute nullity, its invalidity may be asserted by any person whose rights are affected

at any time and at any place and it need not be attacked directly but may be attacked collaterally

whenever and wherever it is interposed, City of Lufkin v. McVicker, 510 S.W.2d 141 (Tex. Civ. App. –

Beaumont 1973). A void judgment, insofar as it purports to be pronouncement of court, is an absolute

nullity, Thompson v. Thompson, 238 S.W.2d 218 (Tex.Civ.App. – Waco 1951). A void judgment is one

that has been procured by extrinsic or collateral fraud, or entered by court that did not have jurisdiction

over subject matter or the parties, Rook v. Rook, 353 S.E.2d 756, (Va. 1987). A void judgment is a

judgment, decree, or order entered by a court which lacks jurisdiction of the parties or of the subject

matter, or which lacks the inherent power to make or enter the particular order involved, State ex rel.

Turner v. Briggs, 971 P.2d 581 (Wash. App. Div. 1999). A void judgment or order is one that is entered

by a court lacking jurisdiction over the parties or the subject matter, or lacking the inherent power to

enter the particular order or judgment, or where the order was procured by fraud, In re Adoption of E.L.,

733 N.E.2d 846, (Ill.App. 1 Dist. 2000). Void judgments are those rendered by court which lacked

jurisdiction, either of subject matter or parties, Cockerham v. Zikratch, 619 P.2d 739 (Ariz. 1980). Void

judgments generally fall into two classifications, that is, judgments where there is want of jurisdiction of

person or subject matter, and judgments procured through fraud, and such judgments may be attacked

directly or collaterally, Irving v. Rodriquez, 169 N.E.2d 145, (Ill.app. 2 Dist. 1960). Invalidity need not

appear on face of judgment alone that judgment or order may be said to be intrinsically void or void on

its face, if lack of jurisdiction appears from the record, Crockett Oil Co. v. Effie, 374 S.W.2d 154

(Mo.App. 1964). Decision is void on the face of the judgment roll when from four corners of that roll, it

may be determined that at least one of three elements of jurisdiction was absent: (1) jurisdiction over

parties, (2) jurisdiction over subject matter, or (3) jurisdictional power to pronounce particular judgment

that was rendered, B & C Investments, Inc. v. F & M Nat. Bank & Trust, 903 P.2d 339 (Okla. App. Div.

20

3, 1995). Void order may be attacked, either directly or collaterally, at any time, In re Estate of

Steinfield, 630 N.E.2d 801, certiorari denied. See also Steinfeld v. Hoddick, 513 U.S. 809 (Ill. 1994).

Void order which is one entered by court which lacks jurisdiction over parties or subject matter, or lacks

inherent power to enter judgment, or order procured by fraud, can be attacked at any time, in any court,

either directly or collaterally, provided that party is properly before court, People ex rel. Brzica v.

Village of Lake Barrington, 644 N.E.2d 66 (Ill.App. 2 Dist. 1994). While voidable orders are readily

appealable and must be attacked directly, void order may be circumvented by collateral attack or

remedied by mandamus, Sanchez v. Hester, 911 S.W.2d 173, (Tex.App. – Corpus Christi 1995).

Arizona courts give great weight to federal courts’ interpretations of Federal Rule of Civil Procedure

governing motion for relief from judgment in interpreting identical text of Arizona Rule of Civil

Procedure, Estate of Page v. Litzenburg, 852 P.2d 128, review denied (Ariz.App. Div. 1, 1998). When

rule providing for relief from void judgments is applicable, relief is not discretionary matter, but is

mandatory, Orner v. Shalala, 30 F.3d 1307 (Colo. 1994). Judgments entered where court lacked either

subject matter or personal jurisdiction, or that were otherwise entered in violation of due process of law,

must be set aside, Jaffe and Asher v. Van Brunt, S.D.N.Y.1994, 158 F.R.D. 278. A “void” judgment, as

we all know, grounds no rights, forms no defense to actions taken thereunder, and is vulnerable to any

manner of collateral attack (thus hereby). No statute of limitations or repose runs on its holdings, the

matters thought to be settled thereby are not res judicata, and years later, when the memories may have

grown dim and rights long been regarded as vested, any disgruntled litigant may reopen the old wound

and once more probe its depths. And it is then as though trial and adjudication had never been,

10/13/58, FRITTS v. KRUGH, SUPREME COURT OF MICHIGAN, 92 N.W.2d 604, 354 Mich. 97.

On certiorari this Court may not review questions of fact. Brown v. Blanchard, 39 Mich 790. It is

not at liberty to determine disputed facts (Hyde v. Nelson, 11 Mich 353), nor to review the weight

of the evidence, Linn v. Roberts, 15 Mich 443; Lynch v. People, 16 Mich 472. Certiorari is an

appropriate remedy to get rid of a void judgment, one which there is no evidence to sustain, Lake

Shore & Michigan Southern Railway Co. v. Hunt, 39 Mich 469.

What about default judgments?

Anybody you know been subjected to a default judgment? If you ask an attorney

or a judge if there is relief from a default judgment, they will ask if you got notice. They

will claim if you got notice, there’s nothing you can do ‘cause you had the opportunity

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and didn’t answer so you lost – tough luck! This just goes to show how little attorneys

and judges know about real law. EVEN A DEFAULT JUDGMENT MUST BE

PROVED! Oklahoma’s law on default judgments = Trial court could not award damages

to plaintiff, following default judgment, without requiring evidence of damages,

Razorsoft, Inc. v. Maktal, Inc., Okla. App. Div. 1, 907 P.2d 1102 (1995), rehearing

denied. A party is not in default so long as he has a pleading on file which makes an

issue in the case that requires proof on the part of the opposite party in order to entitle

him to recover, Millikan v. Booth, Okla., 4 Okla. 713, 46 P. 489 (1896). Proof of or

assessment of damages upon petition claiming damages, it is error to pronounce

judgment without hearing proof or assessing damages, Atchison, T. & S.F. Ry. Co. v.

Lambert, 31 Okla. 300, 121 P. 654, Ann.Cas.1913E, 329 (1912); City of Guthrie v. T. W.

Harvey Lumber Co., 5 Okla. 774, 50 P. 84 (1897). In the assessment of damages

following entry of default judgment, a defaulting party has a statutory right to a hearing

on the extent of unliquidated damage, and encompassed within this right is the

opportunity to a fair post-default inquest at which both the plaintiff and the defendant can

participate in the proceedings by cross-examining witnesses and introducing evidence on

their own behalf, Payne v. Dewitt, Okla., 995 P.2d 1088 (1999). A default declaration,

imposed as a discovery sanction against a defendant, cannot extend beyond saddling

defendant with liability for the harm occasioned and for imposition of punitive damages,

and the trial court must leave to a meaningful inquiry the quantum of actual and punitive

damages, without stripping defendant of basic forensic devices to test the truth of

plaintiff's evidence, Payne v. Dewitt, Okla., 995 P.2d 1088 (1999). Fracture of two toes

required expert medical testimony as to whether such injury was permanent so as to allow

damages for permanent injury, future pain, and future medical treatment on default

judgment, and such testimony was not within competency of plaintiff who had no

medical expertise, Reed v. Scott, Okla., 820 P.2d 445, 20 A.L.R. 5th 913 (1991).

Rendition of default judgment requires production of proof as to amount of unliquidated

damages, Reed v. Scott, Okla., 820 P.2d 445, 20 A.L.R. 5th 913 (1991). When face of

judgment roll shows judgment on pleadings without evidence as to amount of

unliquidated damages then judgment is void, Reed v. Scott, Okla., 820 P.2d 445, 20

A.L.R. 5th 913 (1991). In a tort action founded on an unliquidated claim for damages, a

22

defaulting party is deemed to have admitted only plaintiff's right to recover, so that the

court is without authority or power to enter a judgment fixing the amount of recovery in

the absence of the introduction of evidence, Graves v. Walters, Okla. App., 534 P.2d 702

(1975). Presumptions which ordinarily shield judgments from collateral attacks were not

applicable on motion to vacate a small claim default judgment on ground that court

assessed damages on an unliquidated tort claim without first hearing any supporting

evidence, Graves v. Walters, Okla. App., 534 P.2d 702 (1975). Rule that default

judgment fixing the amount of recovery in absence of introduction of supporting

evidence is void and not merely erroneous or voidable obtains with regard to exemplary

as well as compensatory damages, Graves v. Walters, Okla. App., 534 P.2d 702 (1975).

Where liability of father for support of minor daughter and extent of such liability and

amount of attorney's fees to be allowed was dependent on facts, rendering of final

judgment by trial court requiring father to pay $25 monthly for support of minor until

minor should reach age 18 and $100 attorney's fees without having heard proof thereof in

support of allegations in petition was error, Ross v. Ross, Okla., 201 Okla. 174, 203 P.2d

702 (1949). Refusal to render default judgment against codefendant for want of answer

was not error, since defendants and court treated answer of defendant on file as having

been filed on behalf of both defendants, and since plaintiff could not recover without

offering proof of damages and offered no such proof, Thomas v. Williams, Okla., 173

Okla. 601, 49 P.2d 557 (1935). Under R.L.1910, §§ 4779, 5130 (see, now, this section

and § 2007 of this title), allegation of value, or amount of damages stated in petition,

were not considered true by failure to controvert, Cudd v. Farmers' Exch. Bank of

Lindsay, Okla., 76 Okla. 317, 185 P. 521 (1919). Hearing Trial court's discovery

sanction barring defendant from using cross-examination and other truth-testing devices

at post-default nonjury hearing on plaintiff's damages violated due process, Payne v.

Dewitt, Okla., 995 P.2d 1088 (1999).

If you or anybody you know has a default judgment, go to the courthouse and check the

record. If they failed to prove up their claim -- that default judgment is void ab initio, subject to

vacation without time limitation!

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The really big deal, the real issue in void judgments is, tah, dum, de dum, SUBJECT MATTER

JURISDICTION!!!! Remember, subject matter can never be presumed, never be waived, and cannot

be constructed even by mutual consent of the parties. Subject matter jurisdiction is two-part: the

statutory or common law authority for the court to hear the case and the appearance and testimony of a

competent fact witness; in other words, sufficiency of pleadings.

Even if a court (judge) has or appears to have subject matter jurisdiction, subject matter jurisdiction can

be lost. Major reason why subject matter jurisdiction is lost:

(1) Fraud upon the court, In re Village of Willowbrook, 37 Ill.App.3d 393 (1962);

(2) A judge does not follow statutory procedure, Armstrong v. Obucino, 300 Ill 140, 143 (1921);

(3) Unlawful activity of a judge or undisclosed conflict of interest, Code of Judicial Conduct;

(4) Violation of due process, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019 (1938); 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);

(5) If the court exceeded its statutory authority, Rosenstiel v. Rosenstiel, 278 F.Supp. 794 (S.D.N.Y.

1967);

(6) Any acts in violation of 11 U.S.C. 362(a), (the bankruptcy stay), In re Garcia, 109 B.R. 335 (N.D.

Illinois, 1989);

(7) Where no justiciable issue is presented to the court through proper pleadings, Ligon v. Williams, 264

Ill.App.3d 701, 637 N.E.2d 633 (1st Dist. 1994);

(8) Where 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);

(9) Where any litigant was represented before a court by a person/law firm that is prohibited by law to

practice law in that jurisdiction;

(10) When the judge is involved in a scheme of bribery (the Alemann cases, Bracey v. Warden, U.S.

Supreme Court No. 96-6133 (June 9, 1997);

(11) Where a summons was not properly issued;

(12) Where service of process was not made pursuant to statute and Supreme Court Rules, Janove v.

Bacon, 6 Ill.2d 245, 249, 218 N.E.2d 706, 708 (1955);

(13) Where the statute is vague, People v. Williams, 638 N.E.2d 207 (1st Dist. 1994);

(14) When proper notice is not given to all parties by the movant, Wilson v. Moore, 13 Ill.App.3d 632,

301 N.E.2d 39 (1st Dist. 1973);

24

(15) Where an order/judgment is based 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

(16) Where public policy is violated, Martin-Tregona v. Roderick, 29 Ill.App.3d 553, 331 N.E.2d 100

(1st Dist. 1975).

SUMMARY OF THE LAW OF VOIDS

Before a court (judge) can proceed judicially, jurisdiction must be complete, consisting of two

opposing parties (not their attorneys – although attorneys can enter an appearance on behalf of a party,

only the parties can testify, and until the plaintiff testifies, the court has no basis upon which to rule

judicially), and the two halves of subject matter jurisdiction = the statutory or common law authority the

action is brought under (the theory of indemnity) and the testimony of a competent fact witness

regarding the injury (the cause of action). If there is a jurisdictional failing appearing on the face of the

record the matter is void, subject to vacation with damages, and can never be time barred. There are an

estimated fifty-million ($50,000,000) void judgments on the books in America’s courthouses. IF

EVERY VOID JUDGMENT WAS VACATED WITH DAMAGES, IT WOULD REPRESENT

THE GREATEST SHIFT IN MATERIAL WEALTH IN THE HISTORY OF THE WORLD!

WORKBOOK ASSIGNMENT = Reasearch Federal Rules of Civil Procedure Annotated under rule

60(b)(4). What is your state’s parallel to F.R.Civ. Proc. Rule 60(b)(4)?

So how do we vacate void judgments?

We petition to vacate them – we sue them!

This is known as a collateral attack. Sometimes a direct attack is appropriate, but not usually. A direct

attack goes back into the same court where judgment was obtained and likely to the same judge.

Obviously, it is usually most beneficial to do a collateral attack – SUE THEM! SUE THE PARTY

WHO GOT THE JUDGMENT AGAINST YOU OR YOUR FRIEND. Also, after we get the judgment

vacated, it’s almost always moot and cannot be reasserted, especially if beyond the statute of limitations.

And please remember, statutes of limitation DO NOT APPLY TO VACATING VOID JUDGMENTS!

Following are three sample cases to vacate void judgments. The court (meaning the judge) cannot

consider any information not shown to be of record in the original case AS THERE IS NO PRE-TRIAL

IN VACATING VOID JUDGMENTS!!!!

25

The following template is in the Vermont form. To file a proper and sufficient pleading

empowering the court to rule favorably for you, check the style and authority to vacate void judgments

in your state. One is a quiet title petition, which is a variation of the law of voids where the action is to

recover real property. An action to recover personal property is called a replevin. Another variation of

the law of voids is exercisable in bandruptcy court. I recommend using this last void strategy as a last

resort, and even then I suggest chapter 13 rather than the ill effects of a chapter 7. The strategy is to file

a chapter 13 – be sure to file a plan and an 11 USC 9014 at the same time. Set the 11 USC 9014 for

hearing and notice the party holding the void judgment. After vacating the void judgment as a

“contested matter,” dismiss the chapter 13.

State of Vermont Essex County

Siwooganock Bank, ) ) plaintiff, ) ) Essex Superior Court vs. ) Docket number 40-7-99Excv ) Aaron J. Lovejoy and ) Eva J. Lovejoy, ) ) defendants. ) ____________________________________)

Defendants’ Vermont Rules of Civil Procedure, rule 60(b)(4) motion to vacate a void judgment / motion for injunctive and declaratory relief

Brief in support of motion to vacate

1. Aaron J. Lovejoy and Deborah Lovejoy as next friend of Eva J. Lovejoy,

Aaron J. Lovejoy and Eva J. Lovejoy being aggrieved parties, move this court for

vacation of a void judgment.

2. The judgment of foreclosure in this instant case is facially void for reason that

Siwooganock Bank, hereinafter “Siwooganock,” failed or refused to prove damages

entitling Siwooganock to judgment. Even with a default judgment, DAMAGES

MUST BE PROVED BY EVIDENCE ENTERED ON THE RECORD. For example,

26

see American Red Cross v. Community Blood Center of the Ozarks, 257 F.3d 859 (8th Cir.

07/25/2001). Oklahoma’s Supreme Court has written most eloquently on the subject of

failure to enter evidence on the record renders default judgment void. Taking

account or proof or assessment of damages on default or decision of issue of law, trial

court could not award damages to plaintiff, following default judgment, without requiring

evidence of damages, Razorsoft, Inc. v. Maktal, Inc., Okla.App. Div. 1, 907 P.2d 1102

(1995), rehearing denied. A party is not in default so long as he has a pleading on file

which makes an issue in the case that requires proof on the part of the opposite party in

order to entitle him to recover, Millikan v. Booth, Okla., 4 Okla. 713, 46 P. 489 (1896).

Proof of or assessment of damages upon petition claiming damages, it is error to

pronounce judgment without hearing proof or assessing damages, Atchison, T. & S.F.

Ry. Co. v. Lambert, 31 Okla. 300, 121 P. 654, Ann.Cas.1913E, 329 (1912); City of

Guthrie v. T. W. Harvey Lumber Co., 5 Okla. 774, 50 P. 84 (1897). In the assessment of

damages following entry of default judgment, a defaulting party has a statutory right to a

hearing on the extent of un-liquidated damage, and encompassed within this right is the

opportunity to a fair post-default inquest at which both the plaintiff and the defendant can

participate in the proceedings by cross-examining witnesses and introducing evidence on

their own behalf, Payne v. Dewitt, Okla., 995 P.2d 1088 (1999). A default declaration,

imposed as a discovery sanction against a defendant, cannot extend beyond saddling

defendant with liability for the harm occasioned and for imposition of punitive damages,

and the trial court must leave to a meaningful inquiry the quantum of actual and punitive

damages, without stripping defendant of basic forensic devices to test the truth of

plaintiff's evidence, Payne v. Dewitt, Okla., 995 P.2d 1088 (1999). Fracture of two toes

required expert medical testimony as to whether such injury was permanent so as to allow

damages for permanent injury, future pain, and future medical treatment on default

judgment, and such testimony was not within competency of plaintiff who had no

medical expertise, Reed v. Scott, Okla., 820 P.2d 445, 20 A.L.R.5th 913 (1991).

Rendition of default judgment requires production of proof as to amount of un-liquidated

damages, Reed v. Scott, Okla., 820 P.2d 445, 20 A.L.R.5th 913 (1991). When face of

judgment roll shows judgment on pleadings without evidence as to amount of un-

liquidated damages then judgment is void, Reed v. Scott, Okla., 820 P.2d 445, 20

27

A.L.R.5th 913 (1991). In a tort action founded on an un-liquidated claim for damages, a

defaulting party is deemed to have admitted only plaintiff's right to recover, so that the

court is without authority or power to enter a judgment fixing the amount of recovery in

the absence of the introduction of evidence, Graves v. Walters, Okla.App., 534 P.2d 702

(1975). Presumptions which ordinarily shield judgments from collateral attacks were not

applicable on motion to vacate a small claim default judgment on ground that court

assessed damages on an un-liquidated tort claim without first hearing any supporting

evidence, Graves v. Walters, Okla.App., 534 P.2d 702 (1975). Rule that default

judgment fixing the amount of recovery in absence of introduction of supporting

evidence is void and not merely erroneous or voidable obtains with regard to exemplary

as well as compensatory damages, Graves v. Walters, Okla.App., 534 P.2d 702 (1975).

Where liability of father for support of minor daughter and extent of such liability and

amount of attorney's fees to be allowed was dependent on facts, rendering of final

judgment by trial court requiring father to pay $25 monthly for support of minor until

minor should reach age 18 and $100 attorney's fees without having heard proof thereof in

support of allegations in petition was error, Ross v. Ross, Okla., 201 Okla. 174, 203 P.2d

702 (1949). Refusal to render default judgment against codefendant for want of answer

was not error, since defendants and court treated answer of defendant on file as having

been filed on behalf of both defendants, and since plaintiff could not recover without

offering proof of damages and offered no such proof, Thomas v. Williams, Okla., 173

Okla. 601, 49 P.2d 557 (1935). Under R.L.1910, §§ 4779, 5130 (see, now, this section

and § 2007 of this title), allegation of value, or amount of damages stated in petition,

were not considered true by failure to controvert, Cudd v. Farmers' Exch. Bank of

Lindsay, Okla., 76 Okla. 317, 185 P. 521 (1919). Hearing Trial court's discovery

sanction barring defendant from using cross-examination and other truth-testing devices

at post-default, non-jury hearing on plaintiff's damages violated due process, Payne v.

Dewitt, Okla., 995 P.2d 1088 (1999). For a good Vermont citation on the subject, see

02/07/86 CHARLES REUTHER v. MARILYN GANG, 1986 VT. 20 507 A.2d 972, 146 Vt.

540, wherein the court found, “Where defendant answered both complaints filed by

plaintiff and had filed counterclaim, but did not appear for trial, her requests for

continuance evidenced her intent to continue to defend action; thus, trial court erred when

28

it did not proceed to take testimony before it entered default judgment for plaintiff;

unsworn statement of plaintiff's attorney could not support default judgment rendered.”

It is also true, in mortgage foreclosures, to prove up of the claim requires presentment of

the orginal promissory note and general account and ledger statement. Claim of

damages, to be admissible as evidence, must incorporate records such as a general ledger

and accounting of an alleged unpaid promissory note. The person responsible for

preparing and maintaining the account general ledger must provide a complete

accounting, which must be sworn to and dated by the person who maintained the ledger.

See Pacific Concrete F.C.U. v. Kauanoe, 62 Haw. 334, 614 P.2d 936 (1980), GE Capital

Hawaii, Inc. v. Yonenaka, 25 P.3d 807, 96 Hawaii 32, (Hawaii App 2001), Fooks v.

Norwich Housing Authority, 28 Conn. L. Rptr. 371, (Conn. Super.2000), and Town of

Brookfield v. Candlewood Shores Estates, Inc., 513 A.2d 1218, 201 Conn.1 (1986). See

also, Solon v. Godbole, 163 Ill. App. 3d 845, 114 Ill. Dec. 890, 516 N. E.2d 1045 (3 Dist.

1987). Siwooganock, in alleged foreclosure suit, failed or refused to produce the actual

note which Siwooganock alleges Eva J. Lovejoy owed. Where the complaining party

cannot prove the existence of the note, then there is no note. To recover on a promissory

note, the plaintiff must prove: (1) the existence of the note in question; (2) that the party

sued signed the note; (3) that the plaintiff is the owner or holder of the note; and (4) that a

certain balance is due and owing on the note. See In Re: SMS Financial LLC v. Abco

Homes, Inc., No.98-50117 February 18, 1999 (5th Circuit Court of Appeals), Volume 29

of the New Jersey Practice Series, Chapter 10, Section 123, page 566, emphatically

states, “... and no part payments should be made on the bond or note unless the person to

whom payment is made is able to produce the bond or note and the part payments are

endorsed thereon. It would seem that the mortgagor would normally have a Common law

right to demand production or surrender of the bond or note and mortgage, as the case

may be.” See Restatement, Contracts S 170(3), (4) (1932); C.J.S. Mortgages S 469. In

Carnegie Bank v. Shalleck, 256 N.J. Super 23 (App. Div 1992), the Appellate Division

held, “When the underlying mortgage is evidenced by an instrument meeting the criteria

for negotiability set forth in N.J.S. 12A:3-104, the holder of the instrument shall be

afforded all the rights and protections provided a holder in due course pursuant to N.J.S.

12A:3-302." Since no one is able to produce the “instrument,” there is no competent

29

evidence before the Court that any party is the holder of the alleged note or the true

holder in due course. New Jersey common law dictates that the plaintiff prove the

existence of the alleged note in question, prove that the party sued signed the alleged

note, prove that the plaintiff is the owner and holder of the alleged note, and prove that

certain balance is due and owing on any alleged note. Federal Circuit Courts have ruled

that the only way to prove the perfection of any security is by actual possession of the

security. See Matter of Staff Mortg. & Inv. Corp., 550 F.2d 1228 (9th Cir 1977). “Under

the Uniform Commercial Code, the only notice sufficient to inform all interested parties

that a security interest in instruments has been perfected is actual possession by the

secured party, his agent or bailee.” Bankruptcy Courts have followed the Uniform

Commercial Code. In Re Investors & Lenders, Ltd., 165 B.R. 389 (Bkrtcy.D.N.J.1994),

“Under the New Jersey Uniform Commercial Code (NJUCC), promissory note is

“instrument,” security interest in which must be perfected by possession ...”

Unequivocally, the Court’s rule is that in order to prove the “instrument,” possession is

mandatory.

Conclusion

3. Siwooganock’s judgment of foreclosure is as bogus as a three dollar bill. This

court has a non-discretionary duty to vacate the void judgment and compel Siwooganock

to compensate the defendants for the fair market rental for the time of deprivation of

access to their own property and damages to the property other than normal wear and tear

as well as ending trespass to the property.

Cause for injunctive and declaratory relief

4. Putative owners of the property that is the res of this non-controversy did not

acquire good title as Siwooganock had no valid title to convey. Siwooganock’s claim

was facially void. As irreparable harm will come to the lawful homestead of Eva

Lovejoy, this court’s duty is to protect the property from further trespass or injury by the

putative owners.

Prepared and submitted by: _________________________________________________ Aaron J. Lovejoy Deborah Lovejoy

30

Certificate of Mailing

I, Deborah Lovejoy, certify that on March _____, 2003, I mailed a true and correct copy of the above and foregoing motion to vacate and motion for injunction via certified mail, return receipt requested to:

Siwooganock Bank ________________ ________________

_____________________________

Deborah Lovejoy

31

IN THE DISTRICT COURT OF OKLAHOMA COUNTY

STATE OF OKLAHOMA Sharon C. Right ) and ) Jim R. Right, ) )

Plaintiffs, ) ) v. ) CIVIL NO. _____________ )

MIDFIRST BANK, N.A., ) ) Defendant. ) ______________________________)

PETITION IN THE NATURE OF A PETITION TO VACATE

A VOID JUDGMENT AND COLLATERAL ATTACK OKLAHOMA STATUTE TITLE 12, SECTIONS 1031, 1038

1. Sharon C. Right and Jim R. Right, aggrieved parties, petition this court under authority of

O.S. 12, §§ 1031, 1038 for vacation of a void judgment attached.

2. Fraud was practiced in obtaining judgment warranting vacation of “judgment” CS-2001-

1234: (1) William L. Nixon, Jr., committed felony fraud by advancing writings which William L.

Nixon, Jr., knew were false with the intent that Sharon C. Right and Jim R. Right and the court

would rely on to deprive Sharon C. Right and Jim R. Right of money, property and rights.

William L. Nixon, Jr., knew that the sum demanded of Sharon C. Right and Jim R. Right was

different from and greater than a sum Sharon C. Right and Jim R. Right could owe under any

lawful theory.

3. The putative judgment in CS-2001-1234 is insufficient on its face. The putative judgment

in CS-2001-1234 is not ratified by the signature of a judge. This suggests that William L. Nixon,

Jr., and David M. Harbour are involved in the holder in due course fraud racket. See O.S. Title 21,

Chapter 19, § 554, “Attorney Buying Evidence of Debt - Misleading Court. Every attorney who

either directly or indirectly buys or is interested in buying any evidence of debt or thing in action

with intent to bring suit thereon is guilty of a misdemeanor. Any attorney who in any proceeding

before any court of a justice of the peace or police judge or other inferior court in which he

appears as attorney, willfully misstates any proposition or seeks to mislead the court in any matter

32

of law is guilty of a misdemeanor and on any trial therefore the state shall only be held to prove to

the court that the cause was pending, that the defendant appeared as an attorney in the action, and

showing what the legal statement was, wherein it is not the law. If the defense be that the act was

not willful the burden shall be on the defendant to prove that he did not know that there was error

in his statement of law.” Any person guilty of falsely preparing any book, paper, [({ record, })],

instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced

as genuine upon any [({ trial, proceeding or inquiry whatever, })] authorized by law, SHALL BE

GUILTY OF A FELONY. See Oklahoma Statutes Title 21. Crimes and Punishments, Chapter 13,

Section 453. Reasonably and logically, the rubber stamp mark of David M. Harbour either

appears on the attached putative judgment without knowledge of David M. Harbour or David M.

Harbour chose to stamp the judgment rather than sign it to be able to later deny knowledge of the

fraud clearly articulated at O.S. Title 21, Chapter 19, § 554. It is also true that an unsigned order

is not an order. See SECOND NAT. BANK OF PAINTSVILLE v. BLAIR, 186 S.W.2d 796.

4. A default judgment (even if properly signed) does not enjoy the presumption of res

judicata. William L. Nixon, Jr., placed no evidence on record to prove his case: For want of a

competent fact witness appearing and testifying on record, the court wanted subject matter

jurisdiction to consider the unverified, undocumented claims of William L. Nixon, Jr.

5. A jury’s determination that the putative judgment in CS-2001-1234 contained a claim

which was greater than and different from lawfully owed and/or that the putative judgment was

not signed and/or that jurisdiction is lacking on the face of the record for want of any evidence

whatsoever, warrants vacation of the “judgment” in CS-2001-1234. Determination that William

L. Nixon, Jr., has violated O.S. Title 21, Chapter 19, § 554, and/or O.S. Title 21, Chapter 13, §

453, and/or O.S. Title 21, Chapter 11, § 421, requires a warrant for the arrest of William L. Nixon,

Jr. A jury’s determination that William L. Nixon, Jr., willfully acted to defraud Sharon C. Right

and Jim R. Right justly requires that William L. Nixon, Jr., be compelled to compensate Sharon C.

Right and Jim R. Right a sum of not less twenty-five thousand dollars ($25,000.00), the standard

damages for fraud.

JURY TRIAL DEMANDED

Prepared and submitted by: ____________________________________________

Sharon C. Right Jim R. Right

33

IN THE DISTRICT COURT OF OKLAHOMA COUNTY

STATE OF OKLAHOMA

Billie E. Brighter ) and ) Bernarda Brighter, ) a married couple, ) ) Plaintiffs, ) )

v. ) No. 1234567890 )

GOETZ AND COMPANY, INC., ) ) Defendant. ) ____________________________________)

PETITION IN THE NATURE OF A QUIET TITLE ACTION AND CLAIM / JUDICIAL NOTICE

1. Billie E. Brighter and Bernarda Brighter, hereinafter the “Brighters,” petition

this court under authority of 12 Okl. St. § 93 (4), 12 Okl. St. §§ 131, 1141, and 21 Okl.

St. § 1533.

JUDICIAL NOTICE

2. All officers of the court for Oklahoma County, Oklahoma, are hereby placed

on notice under authority of the supremacy and equal protection clauses of the United

States Constitution and the common law authorities of Haines v. Kerner, 404 U.S. 519,

Platsky v. C.I.A. 953 F.2d. 25, and Anastasoff v. United States, 223 F.3d 898 (8th Cir.

2000) relying on Willy v. Coastal Corp., 503 U.S. 131, 135 (1992), United States v.

International Business Machines Corp., 517 U.S. 843, 856 (1996), quoting Payne v.

Tennessee, 501 U.S. 808, 842 (1991) (Souter, J., concurring), Trinsey v. Pagliaro, D.C.

Pa. 1964, 229 F. Supp. 647, American Red Cross v. Community Blood Center of the

Ozarks, 257 F.3d 859 (8th Cir. 07/25/2001), and Local Rules of the United States District

Court for the Western District of Oklahoma, Rule 7.1(h). In re Haines: pro se litigants

(the Brighters are pro se litigants) are held to less stringent pleading standards than bar

licensed attorneys. Regardless of the deficiencies in their pleadings, pro se litigants are

entitled to the opportunity to submit evidence in support of their claims. In re Platsky:

34

court errs if court dismisses the pro se litigant (the Brighters are pro se litigants) without

instruction of how pleadings are deficient and how to repair pleadings. In re Anastasoff:

litigants’ constitutional rights are violated when courts depart from precedent where

parties are similarly situated. All litigants have a constitutional right to have their claims

adjudicated according the rule of precedent. See Anastasoff v. United States, 223 F.3d

898 (8th Cir. 2000). Statements of counsel, in their briefs or their arguments, are not

sufficient for a motion to dismiss or for summary judgment, Trinsey v. Pagliaro, D.C. Pa.

1964, 229 F. Supp. 647. See also, Local Rules of the United States District Court for the

Western District of Oklahoma, Rule 7.1(h). This court is also noticed on the following

point of law: Prevailing party on default judgment of liability must still prove damages,

American Red Cross v. Community Blood Center of the Ozarks, 257 F.3d 859 (8th Cir.

07/25/2001). This court is further noticed on U.S.C.A. Const. Amend. 5 – Triad Energy

Corp. v. McNell, 110 F.R.D. 382 (S.D.N.Y. 1986), Fed. Rules Civ. Proc., Rule 60(b)(4),

28 U.S.C.A.,U.S.C.A., Klugh v. U.S., 620 F.Supp. 892 (D.S.C. 1985), State v.

Blankenship, 675 N.E. 2d 1303, (Ohio App. 9 Dist. 1996), Graff v. Kelly, 814 P.2d 489

(Okl. 1991), Capital Federal Savings Bank v. Bewley, 795 P.2d 1051 (Okl. 1990), and

Com. v. Miller, 150 A.2d 585 (Pa. Super. 1959), all discussed and relied upon infra.

3. Notwithstanding the fact that the record made in the underlying case construes

in harmony with 12 Okl. St. § 93 (4), defense of laches cannot be raised where the

judgment is facially void. Void judgment is one entered by court without jurisdiction to

enter such judgment, State v. Blankenship, 675 N.E. 2d 1303, (Ohio App. 9 Dist. 1996).

Void judgment, such as may be vacated at any time, is one whose invalidity appears on

face of judgment roll, Graff v. Kelly, 814 P.2d 489 (Okl. 1991). A void judgment is one

that is void on face of judgment roll, Capital Federal Savings Bank v. Bewley, 795 P.2d

1051 (Okl. 1990). Where condition of bail bond was that defendant would appear at

present term of court, judgment forfeiting bond for defendant’s bail to appear at

subsequent term was a void judgment within rule that laches does not run against a void

judgment, Com. v. Miller, 150 A.2d 585 (Pa. Super. 1959).

4. CAUSE OF ACTION: GOETZ AND COMPANY, INC., is trespassing on

property to which the Brighters hold right, title, and interest to, described as “Lots

THIRTEEN (13) and FOURTEEN (14) in Block FIFTY FOUR (54) in SHIELD’S

35

SOUTH OKLAHOMA CITY ADDITION to Oklahoma City, Oklahoma County,

Oklahoma, as shown by the recorded plat thereof.” A copy of the Brighter’s deeds are

attached. The putative judgment of FIRST ENTERPRISE BANK giving rise to the chain

of title ending with GOETZ AND COMPANY, INC., occulting the Brighter’s property,

is void on its face: (1) Even in a default judgment, plaintiff must prove case by

submission of evidence through a competent witness. The record made in CJ-0000

reveals no evidence construing in harmony with Local Rule 7.1(h) of the United States

District Court for the Western District of Oklahoma, Oklahoma Title 12, Chapter 12,

Rule 13, or the common law authority of American Red Cross v. Community Blood

Center of the Ozarks, 257 F.3d 859 (8th Cir. 07/25/2001). (2) The court in the underlying

action wanted subject matter jurisdiction to rule favorably for debt collector in the action,

Delmer W. Porter. Mr. Porter failed or refused to inform the Brighters of their due

process rights under the Fair Debt Collections Practices Act. When the Brighters were

deprived of due process rights, the court was deprived of subject matter jurisdiction. For

examples see: “Void judgment is one where court lacked personal or subject matter

jurisdiction or entry of order violated due process,” U.S.C.A. Const. Amend. 5 – Triad

Energy Corp. v. McNell, 110 F.R.D. 382 (S.D.N.Y. 1986), and “Judgment is a void

judgment if court that rendered judgment lacked jurisdiction of the subject matter, or of

the parties, or acted in a manner inconsistent with due process,” Fed. Rules Civ. Proc.,

Rule 60(b)(4), 28 U.S.C.A.; U.S.C.A. Const. Amend. 5 – Klugh v. U.S., 620 F.Supp. 892

(D.S.C. 1985).

5. The amount in controversy exceeds ten-thousand dollars ($10,000.00).

REMEDY SOUGHT

6. A jury’s determination that GOETZ AND COMPANY INCORPORATED’s

claim of title to the Brighter property is void justly requires ending trespass to the

Brighter’s property described supra, removing all instruments occulting the Brighter’s

title, compensating the Brighters for the fair market value of rents for the time of trespass,

compensating the Brighters for damages to the property other than normal wear and tear,

and compensating the Brighters for the costs in bringing this action.

JURY TRIAL DEMANDED

36

IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

In re: ) ) George Washington, ) Case No. 02-05555-R ) Chapter 13 Debtor, ) 11 USC 9014 motion to

) contest creditor ) Holton Puque’s claim vs. ) as falsely asserted )

Holton Puque, ) ) Creditor. ) ____________________________________)

Brief in support

1. Holton Puque’s putative judgment against George Washington, case number

CJ-99-169, Osage County, Oklahoma is facially void. Holton Puque alleges valid

judgment against George Washington in a sum of twenty-five thousand dollars plus

statutory interest. Holton Puque’s counsels have deceived Holton Puque into thinking

that because George Washington failed to enter an appearance and answer in the

proceeding, Holton Puque obtained a valid judgment. Nothing could be further from the

truth. The debt Holton Puque was attempting to collect goes back to an alleged failure to

pay in the early eighties. All competent jurists know that a right of action to collect a

debt lapses after five years in Oklahoma. Nonetheless, counsel persuaded Puque to sue

George Washington. Oklahoma Statute 12, Section 102, provides, “When a right of

action is barred by the provisions of any statute, it shall be unavailable either as a cause

of action or ground of defense, except as otherwise provided with reference to

counterclaim or setoff.” Because the statute of limitations had run, Puque had no

remedy. After the prescribed time period has lapsed, a statute of limitation serves to

extinguish the remedy for the redress of an accrued cause of action, Smith v.

Westinghouse Elec. Corp., 732 P2d 466, 468 (Okl. 1987), and Reyonolds v. Porter, 760

P.2d 816, 820 (Okl. 1988).

37

2. Regardless, the record made in the Osage County, Oklahoma case reveals the

so-called judgment to be bogus even if the action was timely. Puque’s so-called

judgment was via default. All competent jurists know that even in a default judgment,

plaintiff must “prove up the claim” by submitting an affidavit of damages. See American

Red Cross v. Community Blood Center of the Ozarks, 257 F.3d 859 (8th Cir. 07/25/2001).

If affidavit of damages proving up claim incorporates reference to records such as a

general ledger and accounting of an alleged unpaid promissory note, the person

responsible for preparing and maintaining the account general ledger must provide a

complete accounting which must be sworn to and dated by the person who maintained the

ledger. See Pacific Concrete F.C.U. v. Kauanoe, 62 Haw. 334, 614 P.2d 936 (1980), GE

Capital Hawaii, Inc. v. Yonenaka, 25 P.3d 807, 96 Hawaii 32, (Hawaii App 2001), Fooks

v. Norwich Housing Authority, 28 Conn. L. Rptr. 371, (Conn. Super.2000), and Town of

Brookfield v. Candlewood Shores Estates, Inc., 513 A.2d 1218, 201 Conn.1 (1986).

3. Determination by this court, Holton Puque cannot show by certified copies

from the record made in CJ-99-169 Osage County, Oklahoma, that Holton Puque filed a

timely action and / or proved up his claim by submitting two (2) affidavits verifying a

claim: one, the account general ledger signed and dated under penalty of perjury by the

person who maintained the ledger, wherein is verified that George Washington is

indebted to Holton Puque, and, secondly, Holton Puque’s affidavit of damages sworn

under penalty of perjury that George Washington damaged Holton Puque requires denial

of Puque’s claim as matter of law.

4. Determination by this court, that Holton Puque is represented by counsel in the

matter of Puque vs. Washington, Osage County case number CJ-99-169, judgment

creditor in this instant case, and that counsel is deemed by bar membership to be

intelligent, educated, and trained and under Rule 11 duty to make inquiry, reasonable

under the circumstances, and, therefore, knew that the so-called judgment in Osage

County is facially void warrants sanction of Mr. Puque’s counsel in a sum sufficient

enough so as to be instructional and amend the counsel’s bad behavior. Reasonably and

logically, the sanction should not be less than the sum sought to be taken away from

George Washington.

38

Prepared and submitted by: __________________________________ George Washington 1301 East 15th Street Pawhuska, Oklahoma 74056

Certificate of service

I, George Washington, certify that on December ____, 2002, I mailed a true and correct copy of the above and foregoing motion to contest a matter via first class mail to: Thomas M. Klenda 15 East 5th Street, Suite 3900 Tulsa, Oklahoma 74103-4346 - and - Lonnie D. Eck, Standing Chapter 13 Trustee P.O. Box 3038 Tulsa, Oklahoma 74101-2038

39

IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

In re: ) ) George Washington, ) Case No. 02-05542-R ) Chapter 13 Debtor, ) 11 USC 9014 motion to

) contest creditor vs. ) Holton Puque’s claim ) as falsely asserted

Holton Puque, ) ) Creditor. ) ____________________________________)

Notice of motion George Washington notices Thomas M. Klenda, counsel of record for Holton

Puque, of motion to contest creditor Holton Puque’s claim as falsely asserted. You

should consult with competent legal counsel. If you do not want the court to grant the

requested relief, or if you want your views considered, you must file a written response

with the Clerk of the United States Bankruptcy Court for the Northern District of

Oklahoma no later than fifteen (15) days from the date of filing this request for relief.

You should also mail a copy of your response to George Washington.

Declaration

Fifteen days from the receipt of this notice of motion, an order will be prepared

and submitted to the court for ratification, unless prior to that time counsel for Holton

Puque answers, disputing the material facts and points of law with evidence and

authority and sets the matter for hearing.

Prepared and submitted by: __________________________________ George Washington 1 East 15th Street Pawhuska, Oklahoma 74000

40

Certificate of service

I, George Washington, certify that on December ____, 2002, I mailed a true and correct copy of the above and foregoing notice of motion to contest a matter via first class mail to: Thomas M. Klenda 15 East 5th Street, Suite 3900 Tulsa, Oklahoma 74103-4346 - and - Lonnie D. Eck, Standing Chapter 13 Trustee P.O. Box 3038 Tulsa, Oklahoma 74101-2038

SECTION THREE: The Fair Debt Collections Practices Act

OVERVIEW OF THE FAIR DEBT COLLECTIONS PRACTICES ACT

The Act does not apply to the original makers of a loan. The Act applies to third-

party debt collectors. Third-party debt collectors include lawyers and law firms who are

attempting to collect any alleged debt, including mortgage foreclosures. George W.

Heintz v. Darlene Jenkins, 514 U.S. 291, 115 S.Ct. 1489. When a third-party debt

collector contacts an alleged debtor, the collector must in the first communication or

within five (5) days thereafter furnish the alleged debtor with a “dunning letter.” The

dunning letter must inform the alleged debtor that the collector is attempting to collect a

debt and inform the alleged debtor that they have thirty (30) days to dispute the debt, 15

USC 1692g, 1692g(a)(3). The alleged debtor has thirty (30) days to dispute the debt,

requiring the collectors to furnish validation of the debt, 15 USC 1692G(b). Validation

of the debt can either be a signed judgment order or an accounting which is signed and

dated by the person responsible for maintaining the account general ledger. See Spears v.

Brennan, Pacific Concrete F.C.U. v. Kauanoe, 62 Haw. 334, 614 P.2d 936 (1980), GE

Capital Hawaii, Inc. v. Yonenaka, 25 P.3d 807, 96 Hawaii 32, (Hawaii App 2001), Fooks

v. Norwich Housing Authority, 28 Conn. L. Rptr. 371, (Conn. Super.2000), and Town of

41

Brookfield v. Candlewood Shores Estates, Inc., 513 A.2d 1218, 201 Conn.1 (1986). See

also, Solon v. Godbole, 163 Ill. App. 3d 845, 114 Ill. Dec. 890, 516 N. E.2d 1045 (3 Dist.

1987). Debt collection activity must cease if the debt is disputed. Failure to notice the

alleged debtor of their due process rights subjects the collector to suit for violation of the

Act, and any action to collect without informing the alleged debtor of their due process

rights or failure to cease collection activity until timely validation subjects the collector to

suit for damages under the Act and voids any legal proceedings, including mortgage

foreclosures. The Act also allows damages when the collector makes false statements

regarding the character or amount of the alleged debt. An aggrieved party has one year

from the violation of the Act to sue or one year from the taking of property by the

collector. An aggrieved party under the Act is entitled to one thousand dollars

($1,000.00) in statutory damages plus unlimited damages for intentional infliction of

emotional anguish. Bank of the West v. Superior Court, 2 Cal. 4th 1254, 1267, 833 P.2d

545 (1992), and Fletcher v. Security Pacific National Bank, 23 Cal.3d 442, 451, 591 P.2d

51 (1979). In addition, without time limitation, judgments, including judgments which

have been collected and mortgage foreclosures, are void by reason of deprivation of due

process rights, which deprives the court of subject matter jurisdiction. It is possible to

recover full damages under both strategies or double recovery. Award of statutory

damages does not require proof of actual damages, Woolfolk v. Van Ru Credit Corp.,

D.Conn.1990, 783 F.Supp. 724. Consumer need not produce evidence of actual

damages, Crawford v. Credit Collection Services, D.S.D. 1995, 898 F.Supp.699. Actual

damages not capped at $1,000, Smith v. Law Offices of Mitchell N. Kay, D.Del. 1991, 124

B.R. 182. Court may consider sum necessary to amend bad behavior, Bank of the West v.

Superior Court, 2 Cal. 4th 1254, 1267, 10 Cal Rptr. 2d 538, 833 P.2d 545 (1992), and

Fletcher v. Security Pacific National Bank, 23 Ca.3d 442, 451, 153 Cal.Rptr. 28, 591

P.2d 51 (1979). Debtor need not show intentional conduct on part of collector, Russell v.

Equifax A.R.S., 74 F.3d 30, 33 (2nd Cir. 1996), Bently v. Great Lakes Collection Bureau,

6 F.3d 60, 63 (2nd Cir. 1993). The FDCPA allows recovery for costs. If a debtor notifies

a debt collector within 30 days after receiving notice of an alleged debt that the debt, or

any portion thereof, is disputed, the debt collector shall cease collection activity until the

debt collector obtains and sends verification of the debt to the debtor, 15 USC 1692g(b).

42

A copy of the consumer credit contract is not sufficient to validate the debt. Validation

requires presentment of the account and general ledger statement signed and dated by the

party responsible for maintaining the account, Pacific Concrete F.C.U. V. Kauanoe, 62

Haw. 334, 614 P.2d 936 (1980), GE Capital Hawaii, Inc. v. Yonenaka, 25 P.3d 807, 96

Hawaii 32, (Hawaii App 2001), Fooks v. Norwich Housing Authority, 28 Conn. L. Rptr.

371, (Conn. Super. 2000), and Town of Brookfield v. Candlewood Shores Estates, Inc.,

513 A.2d 1218, 201 Conn.1 (1986), and Solon v. Godbole, 163 Ill. App. 3d 845, 114 Ill.

Dec. 890, 516 N. E.2d 1045 (3 Dist. 1987). The debt collector must actually review the

file, 15 USC 1692e(g). Claims under the Fair Debt Collections Practices Act adhere to

the unsophisticated consumer standard. See Gammon v. GC Services Ltd. Partnership,

C.A.7 (Ill.) 1994, 27 F.3d 1254, on remand 162 F.R.D. 313.

Workbook Assignment: Research the Fair Debt Collections Practices act in the annotated – 15 U.S.C.A.

1601.

TO COMPLETE FORECLOSURE, IS THE ORIGINAL NOTE REQUIRED?

YOU BE THE JUDGE

Where the complaining party cannot prove the existence of the note, then there is no note. To

recover on a promissory note, the plaintiff must prove: (1) the existence of the note in question; (2) that

the party sued signed the note; (3) that the plaintiff is the owner or holder of the note; and (4) that a

certain balance is due and owing on the note. See In Re: SMS Financial LLC v. Abco Homes, Inc.,

No.98-50117 February 18, 1999 (5th Circuit Court of Appeals) Volume 29 of the New Jersey Practice

Series, Chapter 10, Section 123, page 566, emphatically states, “... and no part payments should be made

on the bond or note unless the person to whom payment is made is able to produce the bond or note and

the part payments are endorsed thereon. It would seem that the mortgagor would normally have a

Common law right to demand production or surrender of the bond or note and mortgage, as the case

may be. See Restatement, Contracts S 170(3), (4) (1932); C.J.S. Mortgages S 469. In Carnegie Bank v.

Shalleck, 256 N.J. Super 23 (App. Div 1992), the Appellate Division held, “When the underlying

mortgage is evidenced by an instrument meeting the criteria for negotiability set forth in N.J.S. 12A:3-

104, the holder of the instrument shall be afforded all the rights and protections provided a holder in due

course pursuant to N.J.S. 12A:3-302." Since no one is able to produce the “instrument,” there is no

competent evidence before the Court that any party is the holder of the alleged note or the true holder in

43

due course. New Jersey common law dictates that the plaintiff prove the existence of the alleged note in

question, prove that the party sued signed the alleged note, prove that the plaintiff is the owner and

holder of the alleged note, and prove that certain balance is due and owing on any alleged note.

Federal Circuit Courts have ruled that the only way to prove the perfection of any security is by actual

possession of the security. See Matter of Staff Mortg. & Inv. Corp., 550 F.2d 1228 (9th Cir 1977),

“Under the Uniform Commercial Code, the only notice sufficient to inform all interested parties that a

security interest in instruments has been perfected is actual possession by the secured party, his agent or

bailee.” Bankruptcy Courts have followed the Uniform Commercial Code. In Re Investors & Lenders,

Ltd., 165 B.R. 389 (Bkrtcy. D.N.J. 1994), “Under the New Jersey Uniform Commercial Code (NJUCC),

promissory note is “instrument,” security interest in which must be perfected by possession ...”

Unequivocally, the Court’s rule is that in order to prove the “instrument,” possession is mandatory. In

addition to the note, another element of proof is necessary – an accounting that is signed and dated by

the person responsible for the account. Claim of damages, to be admissible as evidence, must

incorporate records, such as a general ledger and accounting of an alleged unpaid promissory note. The

person responsible for preparing and maintaining the account general ledger must provide a complete

accounting, which must be sworn to and dated by the person who maintained the ledger. See Pacific

Concrete F.C.U. v. Kauanoe, 62 Haw. 334, 614 P.2d 936 (1980), GE Capital Hawaii, Inc. v. Yonenaka,

25 P.3d 807, 96 Hawaii 32, (Hawaii App 2001), Fooks v. Norwich Housing Authority, 28 Conn. L. Rptr.

371, (Conn. Super.2000), and Town of Brookfield v. Candlewood Shores Estates, Inc., 513 A.2d 1218,

201 Conn.1 (1986).

ARE ALL CONTRACTS ASSIGNABLE? WHAT ABOUT CONTRACTS THAT “DIE WITH THE

INDIVIDUAL” OR GO TO A QUESTION OF THE CREDIT OF THE PARTIES? YOU BE THE

JUDGE.

“As a general rule, all contracts are assignable . . . An exception to this rule is that a contract that relies

on the personal trust, confidence, skill, character or {credit} of the parties, may not be assigned without

the consent of the parties.” See Crim Truck & Tractor Co. v. Navistar Int’l, 823 S.W.2d 591, 596 (Tex.

1992). See also Southern Community Gas Co. v. Houston Natural Gas Corp., 197 S.W.2d 488, 489-90

(Tex.Civ.App. – San Antonio 1946, writ ref’d n.r.e.), and Moore v. Mohon, 514 S.W.2d 508, 513 (Tex

Civ. App. – Waco 1974, no writ). Most rights under contracts are assignable, 2 R.C.L. 598. The

44

exception is where rights are coupled with liabilities, with contracts for personal services or with

contracts involving personal confidence. Fire insurance contracts are within the class last mentioned,

and are held not to be assignable because of the confidence reposed by the insurer in the owner of the

property. Thus, the owner may not sell the property and transfer the policy to the purchaser along with

the title; for the insurer has not agreed to insure the property in the hands of the purchaser, nor to assume

the hazard involved in his ownership and possession. On the other hand, an assignment, not of the

policy itself with its obligations, but of the owner's rights thereunder by way of pledge or otherwise as

security for a debt, is held valid, in the absence of express restriction to the contrary; and the reason for

this distinction is that such pledge or assignment does not affect the personal relationship, i.e., the

ownership of the property by the insured, upon the faith of which the policy has been issued. Cooley's

Briefs on Insurance (2d Ed.) vol. 2, pp. 1768, 1769; Ellis v. Kreutzinger, 27 Mo. 311, 72 Am.Dec. 270;

True v. Manhattan Fire Ins. Co. (C.C.), 26 F. 83; Stokes v. Liverpool & London & Globe Ins. Co., 130

S.C. 521, 126 S.E. 649. Such rights could only have arisen in Deutsche from a direct guaranty made by

the Mauricios to Deutsche, or by assignment from someone to whom a guaranty had been made that was

legally assignable. There is no claim of a direct guaranty to Deutsche, so any rights it had could only

have arisen from a legally valid assignment by Centron or Security Marine of the Mauricios' guaranties

to them. The district court concluded that such rights had been validly assigned. We disagree. Under

Maryland law, neither of the assignments made by Centron to Deutsche in respect of Chesapeake's

indebtednesses was effective to assign any guaranty rights against the Mauricios respecting the note

secured by the fifty-foot yacht. Whether a particular assignment is effective to assign a guaranty

respecting a particular debt depends on two things: (1) whether the assignment in terms covers the

guaranty, and (2) whether the guaranty is a legally assignable one. Deutsche relies on two assignments

as the source of its right to recover from the Mauricios as guarantors of the note securing the fifty-foot

yacht: (1) Centron's July 31, 1990 assignment to Deutsche and (2) Centron's October 1, 1990 assignment

to Deutsche simultaneously with Security Marine's assignment to Centron, of their respective "rights,

titles, and interests" in Chesapeake's indebtednesses. Looking first to Centron's July 31, 1990

assignment, we conclude that, even if it could be interpreted as intended to include the Mauricio

guaranty to Centron, the guaranty was not legally assignable. While, as indicated in Part II.A., an

assignment of debt carries with it an assignment of any guaranty of that debt, this does not mean that a

guaranty may be assigned independently of any underlying debt. The general rule is, in fact, to the

contrary where the guaranty is "special," i.e., made only to particular potential lender or lenders. As

45

expressed in black-letter form: If a guaranty covers future credit which is to be extended by a specific

individual, it may not be transferred to another person so as to enable him to become the creditor who is

secured by the guaranty. 38 Am. Jur. 2d Guaranty § 35. The Centron guaranty is such an instrument. It

specifies that it is made "to induce . . . Centron Financial Services, Inc. to make loans and in

consideration of loans heretofore and hereafter made by [Centron] to Chesapeake." JA 36. Further, it

promises "prompt and punctual payment . . . of any and all present and future indebtedness . . . of

[Chesapeake] to you," i.e., Centron. Id. (emphasis added). The guaranty does contemplate that once

Centron extended credit to Chesapeake, Centron might assign the debt, for the guaranty was for

payment to Centron, "its successors and assigns." Id. The guaranty nowhere includes, however, a

promise to pay debts arising between Chesapeake and anyone other than Centron. Under the general

rule, therefore, the Centron guaranty, covering only credit extended by Centron, could not be assigned

by Centron so as to enable Deutsche to become a creditor secured by the guaranty. We are satisfied that

Maryland courts would so hold, though on a basis more explanatory of the actual reason for non-

assignability of guaranties independently of consummated debt. Maryland law properly treats

guaranties of future debt as simply a species of "continuing" or "standing" offers to make a series of

individual, unilateral contracts. See Weil v. Free State Oil Co., 200 Md. 62, 87 A.2d 826, 830 (Md.

1956). Under general contract law principles, such offers are accepted by the extension of credit by the

offeree. See id. ("to be accepted from time to time by [credit extension]"). See generally Restatement

(Second) of Contracts § 31, cmt. b (1981) ("continuing guaranty" constitutes a "standard example of a

divisible offer to make a series of contracts"). And, until such a continuing offer is accepted, it remains

only an offer of contract which, as with contract offers in general, is not assignable. See Routzahn v.

Cromer, 220 Md. 65, 150 A.2d 912, 915 (Md. 1959) ("an offer made to one person cannot be accepted

by another"); Restatement (Second) of Contracts § 52 ("an offer can be accepted only by a person whom

it invites to furnish consideration"); 38 Am. Jur. 2d Guaranty § 35 ("offer of guaranty is, in and of itself,

not assignable").

A note void in the hands of the payee, because obtained by him of the maker by fraud, is

collectible in the hands of a subsequent bona fide holder who has taken it before maturity for value; bbuutt

iiff ssuucchh hhoollddeerr hhaass ppaaiidd oonn ssuucchh ttrraannssffeerr aa lleessss ssuumm tthhaann tthhee aammoouunntt ooff tthhee nnoottee,, hhee ccaann oonnllyy rreeccoovveerr tthhee

aammoouunntt wwhhiicchh hhee,, oorr ssoommee pprriioorr hhoollddeerr tthhrroouugghh wwhhoomm hhee ddeerriivveess ttiittllee,, hhaass ppaaiidd ffoorr iitt.. HOLCOMB v.

WYCKOFF, 1870 WL 5231 (N.J. Supp.).

46

PHONE SCRIPTS TO USE WITH THIRD PARTY COLLECTORS

Commentary on the morality of debt: We believe that if we owe, we should repay. The fallacy is that

we rarely owe when a collector calls. The following phone scripts are not mean spirited when we

realize that the caller is trying to get us to pay money that we don’t owe!

In spite of caller ID or other screening, if a collector calls you:

Thank you for calling. May I have your full name, please? Thank you. Please spell your full name for

me. Now, (their name), what is your social security number? (After listening to their protest say) I just

need to have your identity so I will be suing the correct person if you violate my rights under the fair

debt collections practices act.

- or -

Thank you for calling. Do I have a contract with your company? (They’ll tell you they’re calling

regarding your xyz bill). That’s not my question. Do I have a contract with your company? Don’t ever

call me again.

- or -

Thank you for calling. I was not expecting your call and I’ll need a while to look up some helpful

information. Would you please hold? (Don’t wait for their answer, put the phone down and walk

away.)

Dispute letter to a debt collector

Your Name (print certified mail number here) Your address City, state, zip code the name of the person who sent you the collection letter their address city, state, zip Sir or Madam:

You are in receipt of notice under the authority of The Fair Debt Collections

Practices Act regarding your file #XXXXXXXXXXX, #OOOOOOO 000000 RMS008.

It is not now, nor has it ever been my intention to avoid paying any obligation that I

lawfully owe. In order that I can make arrangements to pay an obligation which I may

47

owe, please document and verify the “debt” by complying in good faith with this request

for validation and notice that I dispute part of or all of the alleged debt.

1. Please furnish a copy of the original promissory note redacting my social

security number to prevent identify theft and state under penalty of perjury that your

client named above is the holder in due course of the promissory note and will produce

the orginal for my own and a judge’s inspection should there be a trial to contest these

matters.

2. Please produce the account and general ledger statement showing the full

accounting of the alleged obligation that you are now attempting to collect.

3. Please identify by name and address all persons, corporations, associations, or

any other parites having an interest in legal proceedings regarding the alleged debt.

4. Please verify under penalty of perjury that, as a debt collector, you have not

purchased evidence of debt and are proceeding with collection activity in the name of the

original maker of the note.

5. Please verify under penalty of perjury that you know and understand that

certain clauses in a contract of adhesion, such as a so-called forum selection clause, are

unenforceable unless the party to whom the contract is extended could have rejected the

clause without impunity.

6. Please verify under penalty of perjury that you know and understand that credit

card contracts are services of continuing offers to contract and as such are non-

transferable.

7. Please provide verification from the stated creditor that you are authorized to

act for them.

8. Please verify that you know and understand that contacting me again after

receipt of this notice without providing procedurally proper validation of the debt

constitutes the use of interstate communications in a scheme of fraud by advancing a

writing which you know is false with the intention that others rely on the written

communication to their detriment.

48

Disputing the “debt,”

Your signature

month day year

Copy to: Consumer Response Center Federal Trade Commission Washington, D.C. 20580

* * * * * * * *

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

Rosalie McNamara, ) ) Plaintiff, ) ) v. ) Number BR 549 ) O’Halloran, Kosoff, Greitner, and ) Cook, P. C., ) ) Defendant. ) ______________________________)

VERIFIED PETITION IN THE NATURE OF A PETITION FOR REDRESS OF

INJURIES UNDER AUTHORITY OF THE FAIR DEBT COLLECTIONS PRACTICES ACT, FOR VIOLATIONS UNDER 15 U.S.C. 1601, ET SEQ.

1. Rosalie McNamara, an aggrieved party, petitions this Court under authority of

15 USC 1601, et seq., hereinafter “The Act.”

2. FIRST CAUSE OF ACTION: O’Halloran, Kosoff, Greitner, and Cook, P. C.,

hereinafter “O’Halloran,” a debt collector, engaged collection activity against Rosalie

McNamara, and continue to engage in collection activity without prior advising Rosalie

McNamara of Ms. McNamara’s due process rights expressly reserved at 15 USC

1692(g)(3), Harvey v. United Adjusters, 509 F.Supp. 1218.

3. SECOND CAUSE OF ACTION: O’Halloran has trespassed on Rosalie

McNamara’s due process rights by truncating the time within which Rosalie McNamara

is privileged to respond to a debt collector.

49

4. Rosalie McNamara is lawfully entitled to statutory damages against

O’Halloran up to a maximum of one thousand dollars ($1,000.00). See 15 USC

1692(a)(k). In addition to statutory damages, Rosalie McNamara is lawfully entitled to

unlimited additional damages for emotional distress, embarrassment, and humiliation

caused by O’Halloran, as a jury should decide. See 15 USC 1692k(a)(1).

REMEDY SOUGHT

5. Determination by this court that Illinois state law, consistent with The Act,

affords Rosalie McNamara greater protection and relief than The Act justly requires the

court’s instruction so to the jury.

6. A jury’s determination that O’Halloran has violated consumer law justly

requires this court’s order to O’Halloran to compensate Rosalie McNamara for statutory

damages not exceeding $1,000.00. A jury’s determination that O’Halloran subjected

Rosalie McNamara to intentional infliction of emotional stress justly requires a jury’s

decision as to whether O’Halloran should be compelled to compensate Rosalie

McNamara in a sum equal to or greater than the sum sought from Rosalie McNamara as

a means to amend O’Halloran’s bad behavior. See Bank of the West v. Superior Court, 2

Cal. 4th 1254, 1267, 10 Cal Rptr. 2d 538, 833 P.2d 545 (1992), and Fletcher v. Security

Pacific National Bank, 23 Ca.3d 442, 451, 153 Cal.Rptr. 28, 591 P.2d 51 (1979).

JURY TRIAL DEMANDED _________________________

Rosalie McNamara

STATE OF ILLINOIS INDIVIDUAL ACKNOWLEDGMENT

COUNTY OF _______________

Before me, the undersigned, a Notary Public in and for said County and State, on this ____ day of __________, 2003, personally appeared _________________________, to me known to be the identical person who executed the within and foregoing instrument and acknowledged to me that she executed the same as her free and voluntary act. Given under my hand and seal the day and year last above written. My commission expires __________

________________________ Notary Public Rosalie McNamara

57 Laughter Lane Brookwood, Illinois 60000

50

SECTION FOUR: Civil litigation When we have an injury, do we really need to patronize the bar association? If we

file our own suit, what are the circumstances where we can be ruled to have filed

frivolously? What is frivolous anyway? Frivolous – A pleading is “frivolous” when it is

clearly insufficient on its face, and does not controvert the material points of the opposite

pleading, and is presumably interposed for mere purposes of delay or to embarrass the

opponent. A claim or defense is frivolous if a proponent can present no rational argument

based upon the evidence or law in support of that claim or defense, Liebowitz v. Aimexco

Inc., 701 P.2d 140 (Colo.App. 03/28/1985). A claim or defense is frivolous if the

proponent can present no rational argument based on the evidence or law in support of

that claim or defense, Western United Realty, Inc. v. Isaacs, 679 P.2d 1063 (Colo. 1984);

Mission Denver Co. v. Pierson, 674 P.2d 363 (Colo. 1984); International Technical

Instruments, Inc. v. Engineering Measurements Co., 678 P.2d 558 (Colo. App. 1983). A

complaint signed under penalty of perjury is not frivolous, McCormick v. Peterson,

CV93-2157, USDC, EDNY 1993.

What about the infamous 12(b)(6)?

Have we really failed to state a claim upon which relief can be granted? Purpose of a motion to

dismiss is to test the law’s support for a claim, not the sufficiency of the underlying facts, Patel v. OMH

Medical Center, Inc., Okla. 987 P.2d 1185 (1999), rehearing denied, certiorari denied, 120 S.Ct. 1242, 528

U.S. 1188, 145 2d 100, certiorari denied, 120 S.Ct. 1242. Motion to dismiss for failure to state a claim

should be denied if relief is possible under any set of facts which can be established and are consistent with

the allegations, 12, O.S. 1991 §§ 2012, subd B; Miller v. Miller, Okla. 956 P.2d 346 (1998). Burden to show

legal insufficiency of petition is on party moving for dismissal, and motion to dismiss for failure to state a

claim must separately state each omission or defect in petition; if it does not, motion shall be denied without

hearing, Indiana Nat. Bank v. State Dept. of Human Services, Okla., 880 P.2d 371 (1994). If dismissal

motion also tenders for consideration materials outside of pleadings, summary judgment procedure must be

utilized, Bray v. Thomas Energy Systems, Inc., 909 P.2d 1191(1995). Fact is "material," for purposes of

motion for summary judgment, if proof of that fact would have effect of establishing or refuting one of the

essential elements of cause of action, Brown v. Oklahoma State Bank & Trust Co. of Vinita, Oklahoma, 860

P.2d 230 (1993). Unsupported contentions of material fact are not sufficient on motion for summary

51

judgment, but rather, material facts must be supported by affidavits and other testimony and documents that

would be admissible in evidence at trial, Cinco Enterprises, Inc. v. Benso, Okla., 890 P.2d 866 (1994). And

remember, demurrers have been abolished – see Federal Rules of Civil Procedure, Rule 7(c).

UNITED STATES OF AMERICA STATE OF ILLINOIS COUNTY OF DUPAGE

IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT Rosalie Goodner, ) ) Plaintiff, ) ) vs. ) No. 2002 L 000152 ) D.S.I. SERVICE MASTER, ) a.k.a. Disaster Services, Inc., ) ) Defendant. ) ________________________________________________ )

PLAINTIFF’S VERIFIED SECOND AMENDED PETITION UNDER AUTHORITY OF 815 ILCS 505 ET SEQ. /

NOTICE TO THE COURT

PLAINTIFF’S SECOND AMENDED PETITION

1. D.S.I. SERVICE MASTER, hereinafter “DSI,” by and through their

authorized agent, Ron Veldman, committed consumer fraud as articulated under 815

ILCS 505, et seq., hereinafter “the Act,” including but not limited to violation of 815

ILCS 505 Sec. 2B (e). DSI consumed property lawfully belonging to Rosalie Goodner

and the estate of John Goodner without notice and opportunity to redeem, without

inventory and valuation of the contents, and in contravention of an agreement to accept

payments to consolidate what Rosalie Goodner allegedly owed DSI. DSI, by and through

Ron Veldman, effectively swindled Rosalie Goodner out of highly valuable property.

This action brought by Rosalie Goodner against DSI is within reach of 815 ILCS 505,

including but not limited to sections of the Act clearly articulating that for purposes of the

Act the word “sale” includes a sale, lease or rental.

52

2. Circa January 5, 2000, Rosalie Goodner received a defective billing via U.S.

Mail. The billing was absurdly dated January 27, 2000. The billing statement from DSI

for storage of property belonging to Rosalie Goodner failed to state payment terms.

Responsive to the defective, ambiguous billing statement from DSI, Rosalie Goodner

called DSI January 6, 2000 and spoke at length with Ron Veldman in an attempt to get

clarification of the statement. The billing discussion included Mr. Veldman’s assertion

that DSI was billing on January 27, 2000 retroactively for the year of 1999. After much

discussion during which Rosalie Goodner felt ingratiated to the mannerly Mr. Veldman

and elaborated on the value of the contents DSI held in bailment, Rosalie Goodner and

DSI, by and through Ron Veldman, agreed to the terms of Rosalie Goodner’s payments

to DSI and determination of an exact date when DSI’s services would no longer be

required by Rosalie Goodner. Two letters were written by Rosalie Goodner and sent to

DSI to memorialize the new terms. The letters were dated January 7 and 31, 2000.

Consistent with a pattern of business, DSI picked up the letter dated January 31, 2000 on

February 1, 2000, including a check for ten thousand ($10,000).

3. January 6, 2000, Ron Veldman learned of Rosalie Goodner’s intent to devote a

substantial portion of the highly valuable property to charitable purposes. This revelation

served to enhance Ron Veldman’s knowledge of the extremely high value of the contents

(DSI was charging Rosalie Goodner $900 per month lease due to the high value).

February 24, 2000, Rosalie Goodner learned that the contents entrusted to DSI had been

sold on February 8, 2000, without prior notice and opportunity to redeem and in direct

breach of the payment terms Ron Veldman had negotiated on behalf of DSI. Allegedly,

contents in unopened boxes were sold instantly for a sum of ten thousand four hundred

dollars ($10,400.00).

4. At all times, when dealing with Ron Veldman, Rosalie Goodner was led to

believe that Ron Veldman had full, complete, actual, as well as apparent authority to act

for and bind DSI. Rosalie Goodner is not in receipt of an inventory from DSI of her

property consumed by DSI. Rosalie Goodner has been damaged financially, socially, and

emotionally by the acts of DSI by and through Ron Veldman. Because the property taken

included heirlooms, antiques, artifacts, and collectables, and because of the aggravation,

emotional anguish, and dehumanizing effects of the experience with DSI, Rosalie

53

Goodner’s damages are great and incalculable, certainly in excess of the fifty-thousand

dollar ($50,000.00) controversy amount for this forum.

5. In addition to actual damages authorized by 815 ILCS 505 / 10a, punitive

damages are within reach of the Act. Whereas, this court shall determine punishment is

necessary to act as retribution against DSI to deter DSI from committing similar wrongs

in the future, and to deter others from similar conduct, punitive damages, which need not

be proportional, are necessary to prevent DSI or others from engaging in the same

reprehensible pattern of conduct in the future.

6. The matter of Rosalie Goodner versus DSI is timely brought as the Act

provides for relief commenced within three years.

JUDICIAL NOTICE

7. Kenneth L. Popejoy and all other officers of the court who many come in

contact with the matter of Goodner versus Disaster Services are noticed under authority

of the supremacy and equal protection clauses of the United States Constitution and the

common law authorities of Haines v. Kerner, 404 U.S. 519-421, Platsky v. C.I.A., 953

F.2d. 25, and Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000). In re Haines: pro

se litigants are held to less stringent pleading standards than bar licensed attorneys.

Regardless of the deficiencies in their pleadings, pro se litigants are entitled to the

opportunity to submit evidence in support of their claims. In re Platsky: court errs if court

dismisses the pro se litigant without instruction of how pleadings are deficient and how to

repair pleadings. In re Anastasoff: litigants’ constitutional rights are violated when courts

depart from precedent where parties are similarly situated.

REMEDY SOUGHT

8. Whereas a jury shall determine that DSI acted in violation of 815 ILCS 505, et

seq., to damage Rosalie Goodner, Rosalie Goodner shall be entitled to actual damages as

the jury should decide. This court’s instruction to the jury to consider exemplary damages

consistent with 815 ILCS 505 / 10a, warrants additional damages as a jury shall find

necessary to amend the bad behavior of DSI.

JURY TRIAL DEMANDED

54

I, Rosalie Goodner, verify under penalty of perjury that the factual averments in the

above and forgoing are truthful and accurate to the best of my knowledge.

STATE OF ILLINOIS INDIVIDUAL ACKNOWLEDGMENT

COUNTY OF DUPAGE

Before me, the undersigned, a Notary Public in and for said County and State on

this ____ day of ________, 2002, personally appeared _________________________ ,

to me known to be the identical person who executed the within and foregoing instrument

and acknowledged to me that she executed the same as her free and voluntary act.

Given under my hand and seal the day and year last above written.

My commission expires __________ ________________________ Notary Public

Prepared and submitted by: _____________________________

Rosalie Goodner 57 Happy Land Lane Oak Brook, Illinois 60523

(630)321-0000

* * * * * * * *

SECTION FIVE: Appeals

Sometimes we don’t win in the lower court – that’s what appeals are for. Appeals

are actually easier than fundamental litigation.

Step one: Notice of appeal

Workbook assignment = What is your state’s authority for notice of appeal?

________________________________________________________________________

When does it have to be filed? ____________________

What about designation of record? _____________________

What is the cost of a civil appeal in your state? ___________________

55

Appeal No. 02-01349

IN THE ARKANSAS COURT OF APPEALS

Guy Moon

Plaintiff / Appellant

v.

Bill R. Holloway and John Lewis

Defendants / Appellees

APPEAL IN CAUSE NO. CIV-2002-21-3

IN THE CIRCUIT COURT

OF DESHA COUNTY, ARKANSAS

CHARLES A. YEARGAN PRESIDING

APPELLANTS’ OPENING BRIEF

Guy Moon 2982 Levee Road South Wonderland, Arkansas 71111

(870)-355-0000

56

TABLE OF CONTENTS

Informational statement and jurisdictional statement . . . . 3

Appellant’s points on appeal. . . . . . . . 3, 4

Table of authorities . . . . . . . . 4

Abstract . . . . . . . . . 5

Statement of the case . . . . . . . . 5, 6

Statement of facts presented by appellant. . . . . . 7

Argument . . . . . . . . . 7-10

Certificate of service . . . . . . . . 10

Index to the Addendum. . . . . . . . 11

57

Informational statement and jurisdictional statement

This appeal is taken from the circuit court’s decision to render summary judgment

against the plaintiff / appellant. The Appellate Court of Arkansas has jurisdiction to

consider the issues raised in this appeal under authority of the Arkansas Rules of

Appellate Procedure, Rule 2(a)1.

Appellant’s first point on Appeal

Although all competent jurists understand appeal of summary judgment is

considered de novo, to an extent, the decision of the court below should be reviewed for

abuse of discretion as the record shows the court below: (1). Conducted a bench trial

where the court contravened United States Supreme Court authority regarding the

pleadings of pro se litigants; (2). Treated counsel for both defendants as incompetent and

presumed to be guardian ad litem for both defendants, including aggressive cross-

examination of Guy Moon; (3). Disregarded the record which shows that Guy Moon

repeatedly testified in support of his claims demonstrating that it was Guy Moon in fact

who empowered the court to grant summary judgment for Guy Moon; and (4). The court

below was deprived of subject matter jurisdiction for reason that the court’s

misapplication of the rules of civil procedure denied plaintiff/appellant of due process.

Appellant’s second point on Appeal

The court below misapprehended the record (in actuality, was dishonest about the

record) which shows: (1). The appeals court did not foreclose the underlying claims of

Guy Moon in ruling number CA 98-443; (2). The chancery court had ruled on a core

issue important to the appeal; (3). Holloway and Lewis, with a duty to inform the

appellate court that the chancery court had so ruled, not only breached duty to move for a

rehearing based on the record showing the ruling, but occulted the ruling from the

appellate court, too, and with malice and aforethought, caused great harm to Guy Moon;

and (4). Lewis and Holloway refused to inform Guy Moon of the appellate court’s

decision until about a month after the ruling. Most egregious of all, the court below,

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Charles A. Yeargan, disregarded the fact that these acts were well within the three year

statute of limitations for claims arising from breach of professional duty.

Appellant’s third point on Appeal

De novo review of the record made in the court below shows Guy Moon, not

Holloway and Lewis, was entitled to summary judgment.

Appellant’s fourth point on Appeal

The court below applied the wrong standard, and in doing so, abrogated

controlling authorities, including compelling recent authority from the United States

Supreme Court. Charles A. Yeargan misapplied the standard for determination in the

court below embracing Holloway and Lewis’ motions for summary judgment as motions

to dismiss for failing to state a claim. The misprision of Yeargan includes knowledge of

confession of Lewis committing fraud and Yeargan’s pretence that the clearly pleaded

claims of Guy Moon were untruthful where the record verifies the opposite.

Table of authorities

IN THE UNITED STATES SUPREME COURT

Haines v. Kerner, 404 U.S. 519-421 . . . . . . 7

National Railroad Passenger Corporation v. Morgan,

122 S.Ct. 2061 (U.S. 06/10/2002) . . . . . . 10

PURSUASIVE AUTHORITES

Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647. . . . 9

59

Abstract

Clearly stating breach of duty arising under contract, Guy Moon brought suit in

Desha County naming John Lewis and Bill Holloway as defendants. Counsel for

Holloway and Lewis both moved for dismissal for allegedly failing to state a claim upon

which relief can be granted. Mr. Moon answered the motions to dismiss with authority

and the court languished as months transpired before an official could be found who

would be the trier of fact in this case involving two “prominent” attorneys. Assigned

court administrator, Charles A. Yeargan, issued a pre-trial scheduling order including a

cut off date for summary judgment motions. Counsel for both defendants filed motions

for summary judgment. Holloway’s motion was untimely, without recitation on cause for

enlargement of time to file. Yeargan allowed the out of time filing over Guy Moon’s

motion to strike, based on Howard M. Holthoff’s much belated claim of illness. Hearing

was had for determination on the motions for summary judgment with Charles A.

Yeargan acting as counsel for both Lewis and Holloway. Guy Moon testified extensively

in support of claims. Charles A. Yeargan, with a duty to determine whether there were

facts in dispute, with full knowledge that neither John Lewis nor Bill Holloway disputed

the material facts of the case, nonetheless, granted summary judgment in favor of

Holloway and Lewis.

Statement of the case

Holloway and Lewis were under contract to Guy Moon for the express purpose of

suing responsible parties who had defrauded Guy Moon of a property interest of

somewhere in excess of one million dollars. The record suggests that Holloway and

Lewis sold out Guy Moon by colluding with and being compensated by the true party in

60

interest in the suit. The crux of the litigation was whether or not Guy Moon waived rights

by failing to timely protest a shareholders’ meeting and sale of stock. Judge Vittitow

ruled February 10th, 1994 that Guy Moon was not required to object to the sale since the

shareholders meeting did not conform to Arkansas law. Vittitow’s decision made it

impossible for Guy Moon to lose the case under proper application of law. Vittitow’s

decision then had the effect of causing Lewis and Holloway to practice a protracted series

of subterfuges to perfect the sell-out of Guy Moon. The last in a chain of acts of

misconduct by Holloway and Lewis began with the filing of a bogus appeal brief in the

matter. The appellate court sustained the lower court’s decision, but did not foreclose the

claim of Guy Moon contingent on a showing that the chancery court had ruled the

shareholders’ meeting and sale violated Arkansas law. Holloway, with knowledge that

the chancery court had ruled the shareholders’ meeting and sale was illegal (actually

Holloway occulted this information from the appellate court, which is the major reason

why the appeal brief was bogus), allowed the time to file for rehearing and notice the

appellate court of the chancery court determination to lapse. Holloway ignored Guy

Moon’s repeated requests for information until finally, about a month after the time for

rehearing had lapsed, Holloway gave Guy Moon the bad news. Guy Moon brought suit

against Bill Holloway and John Lewis within the three year parameter for breach of

professional duty. Charles A. Yeargan, fully informed of all the facts of this instant case,

including the finding of Vittitow and the ruling of the Arkansas appellate court as well as

John Lewis’ confession of fraud, granted summary judgment in favor of Holloway and

Lewis.

61

Statement of facts presented by appellant

The record shows: (1). John Lewis and Bill Holloway had a contractual obligation

to Guy Moon to litigate a claim; (2). The essential fact of litigation was whether a

shareholders’ meeting and sale was lawful; (3). Lewis and Holloway knew that Robert C.

Vittitow, judge of the Chancery Court of Chicot County, Arkansas, had ruled that the

shareholders’ meeting and sale was not in conformity with Arkansas law; (4). Holloway

filed an appeal of the underlying case but omitted Vittitow’s decision; (5) The Arkansas

appellate court ruled against Guy Moon, but did not foreclose Guy Moon’s claim

contingent on Guy Moon showing that the chancery court ruled with Guy Moon on the

issue of the validity of the shareholders’ meeting and sale; (6). Bill Holloway breached

duty by failing to move the Arkansas appellate court for rehearing based on the Vittitow

determination the Arkansas appeals court apparently believed existed but was not in their

purview; (7). Bill Holloway failed or refused to respond to inquiries by Guy Moon until

well after the time for moving the appeals court for a rehearing had passed; and (8). In

this instant case, John Lewis confessed defrauding Guy Moon by taking money to

represent Guy Moon when he professed to know beyond a reasonable doubt that Guy

Moon didn’t have a case.

Argument

The record shows that Charles A. Yeargan was deprived of subject matter

jurisdiction by acting with extreme prejudice to the due process rights of Guy Moon.

Yeargan, instead of allowing counsel for Lewis and Holloway to argue their motions,

then allowing Guy Moon to rebut and cross examine Lewis and Holloway, provided

assistance of counsel to Holloway and Lewis, neither of whom were present. THIS

APPELLATE COURT IS NOTICED: STATEMENTS OF COUNSEL IN BRIEF

OR IN ARGUMENT ARE NOT FACTS BEFORE THE COURT. See transcript of

the record of the hearing that was had October 4th, 2002. The record verifies that Yeargan

harassed Guy Moon in direct contravention of United States Supreme Court doctrine

established in Haines v. Kerner. See original record, page 0318, lines 24 and 25, page

0319, lines 1- 10. See also, A6 & A7. The record also shows that Yeargan harassed the

only witness who appeared before the court, Guy Moon, by repeatedly being

62

argumentative regarding Guy Moon’s answers to Yeargan’s cross-examination. See

original record, page 0331, page 0332, page 0334, lines 13-16, page 0335, lines 19-25,

page 0336, lines 1-3, 10-13, 22-25, page 0339, lines 5-11, and page 0340, lines 5-8. See

also, A8, A9, A10, A11, A12, A13, & A14. Clearly, Yeargan had one thing on his mind –

to defeat Guy Moon at all cost. To make sure that he (Yeargan) defeated his adversary,

Guy Moon, Yeargan obviously believed that Holthoff and Allen would be

incompetent, hence Yeargan’s need to excoriate Guy Moon in Yeargan’s role as

counsel for Lewis and Holloway. The demeanor of Charles A. Yeargan was: “Okay,

boys (to Allen and Holthoff), I’m gonna’ show you how to whip a pro se even when he’s

right on the law and the facts.” Yeargan’s misconduct is typical of the arrogated

nonsense infesting America’s courts, fomenting a Constitutional crisis. In the best light

imaginable for Holloway and Lewis, Yeargan should have denied the motions for

summary judgment due to facts in dispute: whether Holloway’s failure to file for a

rehearing and inform the appellate court of Vittitow’s determination was a breach of duty

and whether Lewis’ confession of taking money to represent Guy Moon when he

believed Guy Moon didn’t have a case was both an act of bad faith and or fraud.

Charles A. Yeargan misapprehended the record which shows, inter alia: (1).

Holloway and Lewis had an obligation to Guy Moon under contract – see original record,

page 0331 and 0332. See also, A8 & A9; (2). The appeals court in CA 98-443 did not

foreclose the claims of Guy Moon contingent on showing that the chancery court had

ruled the shareholders’ meeting and sale unlawful – see original record, page 000014,

000015. See also, A15 & A16; (3). The chancery court had ruled the shareholders’

meeting and sale unlawful. See original record, page 000017. See also, A17; (4).

Holloway failed to file for a rehearing and notice the court of the record omitted by Bill

Holloway – see original record, page 0333, 0334, and 000017 (NOTICE THE LOWER

RIGHT HAND CORNER “88”). See also, A10 & A17; (5). Bill Holloway breached

duty to keep Guy Moon informed by avoiding Guy Moon until April 5th, more than a

month after the appellate court’s decision; (6). The fatal events happened well within the

statute of limitations for causes of actions on contracts and within the statute of

limitations for actions for breach of professional duty; (7). John Lewis committed fraud

by taking Guy Moon’s money to represent him when he claimed upon his oath that Guy

63

Moon’s case was already lost – see original record, page 0325, line 25 and page 0326,

lines 1-4. See also, A18 & A19. (This court is noticed: statute of limitations on fraud

runs from the time fraud is discovered); and (8). Charles A. Yeargan provided

assistance of counsel for John Lewis and Bill Holloway. The court is further noticed:

the day of the hearing that was had for determination on the summary judgment

motions, Guy Moon entered facts on the record; neither Holloway nor Lewis were in

appearance: Statements of counsel and brief or in argument are not sufficient for

motion to dismiss or for summary judgment, Trinsey v. Pagliaro. It is also true,

Charles A. Yeargan willfully acceded to the fraud that Guy Moon had complained of no

act within the three year statute of limitations. Either Yeargan refused to read the original

petition of Guy Moon, thereby violating the due process rights of Guy Moon, or Yeargan

read Guy Moon’s original petition and knew that fraud was being committed by the claim

contrary to article 4 of Guy Moon’s original petition – See pages 000007-000009. See

also, A20-A22.

The standard of review for both dismissals and summary judgments is de novo.

Cite omitted. De novo review of CIV-02-21-3 shows that Guy Moon proved his case by

entering facts on the record. The only testimony of record in support of Lewis and

Holloway is Lewis’ and Holloway’s affidavits, WHICH DO NOT DISPUTE THE

MATERIAL FACTS OF Guy Moon’s CASE.

The court below, Charles A. Yeargan, misapplied the motion to dismiss standard

– see original record, page 0350, lines18 and 19. See also, A23. All competent jurists

know that a motion to dismiss assumes the averments in pleading are true and poses the

question: do the plainly pleaded facts fit any theory? Yeargan was wantonly deceitful in

that Yeargan considered Guy Moon’s averments fabrications in spite of the clear face of

the record verifying them, and Yeargan demanded that Guy Moon and not Yeargan offer

a theory for the case, then arrogantly rejected the theory (breach of contract) based on

Yeargan’s “switcheroo” to a different theory after Guy Moon established on record that a

contract had in fact existed between Guy Moon and the respondents. Then Yeargan

absurdly ruled that a complaint clearly filed within three years was nonetheless out of

time – “Any excuse suits a tyrant.” Along the way, in his conduct of what is commonly

known as a “kangaroo court,” Yeargan abrogated doctrine of the United States Supreme

64

Court - Even acts time-barred are equitably considered by jury to determine damages.

Consideration of the entire scope of a . . . claim, including behavior alleged outside the

statutory time period, is permissible for the purposes of assessing liability, so long as any

act . . . takes place within the statutory time period. See United States Supreme Court

case National Railroad Passenger Corporation v. Morgan, 122 S.Ct. 2061 (U.S.

06/10/2002).

Conclusion and prayer for relief

Ideals of substantial justice and fair play, as well as proper administration of the

rules of court, justly require reversing the decision of the circuit court, granting summary

judgment to and in favor of Guy Moon, and remanding to the court below for a jury’s

determination of amount and apportionment of damages.

Prepared and submitted by: _____________________

Guy Moon

CERTIFICATE OF SERVICE

I, Guy Moon, certify, that on January ______, 2003, I mailed a true and correct

copy of the above and foregoing appellant’s opening brief via first class mail to:

Howard M. Holthoff 152 South Main Street Dumas, Arkansas 71639

& Justin T. Allen 200 West Capitol Avenue, Suite 2200 Little Rock, Arkansas 72201-3699

65

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS

File Number 502CV185

Carolyn Foster ) and ) Murrell Foster, a married couple, ) ) Plaintiffs, ) )

v. ) Notice of Appeal )

T. John Ward, et al., ) ) Defendants. ) ____________________________________) Notice is hereby given that Carolyn Foster and Murrell Foster, plaintiffs in the

above named case, appeal to the United States Court of Appeals for the Fifth Circuit from

the final judgment wherein Thad Heartfield deprived the Fosters of access to court,

denied the Fosters remedy, violated the Fosters’ Constitutional rights by refusing to

adjudicate their claim according to the rule of law and precedent, and retaliated against

Murrell and Carolyn Foster for daring to cite records verifying multiple counts of perjury

committed by Heartfield. Entered on the _______ of March, 2003

Prepared and submitted by: _________________________________________________ Carolyn Foster Murrell Foster

CERTIFICATE OF SERVICE

I, Murrell Foster, hereby certify that a true and correct copy of the above and foregoing plaintiffs’ notice of appeal was hand delivered to the United States Attorney. ________________ _________________________________ Date Murrell Foster

66

Number 02-41605

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

2003

Carolyn Foster and Murrell Foster

Plaintiffs / Appellants,

Versus

Donald W. Capshaw, et al.,

Defendants / Appellees

On appeal from the lower court’s dismissal with prejudice of complaint Under authority of 18 USC 1964(a)

The United States District Court For the Eastern District of Texas

T. John Ward, District Judge

Case number 5:02-CV-148

Appellants’ opening brief Murrell and Carolyn Foster Rt. 2, Box 197 DeKalb, Texas 75559 (903) 684-3640 March 12th, 2003

67

Table of contents

Certificate of interested persons . . . . . . 2

Statement regarding oral argument . . . . . . 2

Statement of Jurisdiction . . . . . . . 2

Table of authorities . . . . . . . . 3, 4

Statement of the Case . . . . . . . . 5-12

Statement of Facts Relevant to the Issues Presented for Review . . 13-20

Statement of the issues . . . . . . . 20, 21

Argument and Authorities in support of issues: . . . . 21-26

(1). T. John Ward wanted subject matter jurisdiction to dismiss Murrell and Carolyn Foster’s racketeering suit against corrupt business organizations to which Ward belongs. Ward’s presuming jurisdiction to be judge of a cause where Ward confessed being a member in good standing of the businesses which were named as respondents violates The Code of Conduct for United States Judges.

(2). The contumacious T. John Ward contravened the rule making authority of The United States Supreme Court and circumvented the Federal Rules of Civil Procedure to handle matters in the court below extra-judicially, extra-legally and non-judicially in a forum cognizable only as coram non judice.

Remedy sought . . . . . . . . 26, 27

Certificate of mailing . . . . . . . . 27

68

Certificate of interested persons, 5th Circuit Rule 28.2.1

Appellants, Murrell and Carolyn Foster, identify the following persons,

associations of persons, partnerships, corporations, affiliates, parent corporations,

guarantors, insurers, parent or subsidy corporations, or other legal entities who or which

may have a financial interest in the outcome of this litigation:

Murrell and Carolyn Foster; plaintiffs / appellants,

Donald W. Capshaw, Bill Peek, Billy Moye, Raymond W. Jordan, Valerie Farwell, Billy

Fox Branson, Lanny Ramsey, William J. Cornelius, Caroline Craven, Margaret J. Reeves,

the American Bar Association, and the State Bar of Texas, defendants / appellees.

Statement regarding oral argument, 5th Circuit Rule 28.2.4

Oral argument is not requested by Murrell and Carolyn Foster. Oral argument

would not materially benefit this court in making its determinations. Murrell and Carolyn

Foster rely on the record made in the underlying case. No amount of oral argument could

alter the clear face of the record.

Statement of Jurisdiction, Federal Rules of Appellate Procedure 28(a)(4)

This district court’s jurisdiction of the action was 18 USC 1964(a). This appellate

court has subject matter jurisdiction to hear this cause under authority of 28 USC 1291.

Table of authorities

Attick v. Valeria Associates, L.P., S.D. N.Y. 1992, 835 F. Supp. 103 . . 22

Avirgan v. Hull, C.A. 11 (Fla.) 1991, 932 F.2d 1572 . . . . 22

Babst v. Morgan Keegan & Co. E.D. La. 1988, 687 F.Supp. 255 . . . 25

Buck Creek Coal, Inc. v. United Workers of America, S.D. Ind. 1995, 917 F.Supp. 601 . . . . . . . . . 25

Code of Conduct for United States Judges . . . . . . 21

69

Compagnie de Reassuarance D’lle de France v. New England Reinsurance Corp. D. Mass. 1993, 825 F.Supp. 370 . . . . . 24 Florida Dept. Ins. V. Debenture Guar. M.D. Fla. 1996, 921 F.Supp. 750 . . 24

Frank E. Basil, Inc. v. Leidesdorf, N.D.Ill. 1989, 713 F.Supp. 1194 . . . 26

Gitterman v. Vitoulis S.D. N.Y. 1982, 564 F.Supp. 46 . . . . 24

Grand Cent. Sanitation, Inc. v. First Nat. Bank of Palmerton, M.D.Pa. 1992 816 F.Supp. 299 . . . . . . . . 24 Guiliano v. Everything Yogert, Inc. E.D. N.Y. 1993, 819 F.Supp. 626 . . 25

Hecht v. Commerce Clearing House, Inc., C.A. 2 (N.Y.) 1990, 897 F.2d 21, 100 A.L.R. Fed. 655 . . . . . . . . 22 In re American Honda Motor Co., Inc. Dealership Relations Litigation, D.Md. 1996, 941 F.Supp. 528 . . . . . . 23 In re Crazy Eddie Securities Litigation, E.D. N.Y. 1990, 747 F.Supp. 850 . . 26

In re Phar-Mor, Inc. Securities Litigation, W.D. Pa. 1994, 900 F.Supp. 777 . 25

In re Sahlen & Associates, Inc. Securities Litigation, S.D. Fla.1991, 773 F.Supp. 342 . . . . . . . . . 25

Jordan v. Herman, F.D. Pa. 1992, 792 F. Supp. 380 . . . . . 23

Khurana v. Innovative Heath Care Systems, Inc., C.A. 5 (La.) 1997, 130 F.3d 143, vacated 119 S.Ct. 442, 525 U.S. 979, 142 2d 397, on remand 164 F.3d 900 . . . . . . . 23 Liquid Air Corp. v. Rogers, C.A. 7 (Ill.) 1987, 834 F.2d 1297 . . . 25

Miller v. Affiliated Financial Corp., N.D. Ill. 1984, 600 F.Supp. 987 . . 24

Minpeco, S.A. v. Hunt, S.D.N.Y. 1989, 718 F.Supp. 168 . . . . 24

Nassau-Suffolk Ice Cream, Inc. v. Integrated Resources, Inc. S.D.N.Y. 1987, 114 F.R.D. 684 . . . . . . . . 23 O’Rourke v. Crosley, D.N.J. 1994, 847 F.Supp. 1208 . . . . 26

Poeter v. Shearson Lehman Bros. Inc., S.D. Tex. 1992, 802 F.Supp. 41 . . 25

Polletier v. Zweifel, C.A. 11 (Ga.) 1991, 921 F.2d 1465, rehearing denied 931 F.2d 901, certiorari denied 112 S.Ct. 167, 502 U.S. 855, 116 131 . . . . . . . . . 23 Protter v. Nathan’s Famous Systems, Inc., E.D. N.Y. 1995, 904 F.Supp. 101 . 23

Prudential Ins. Co. of America v. U.S. Gypsum Co., D.N.J. 1993, 828 F.Supp. 287 . 24

70

Randolph County Federal Sav. & Loan Assoc. v. Sutliffe, S.D. Ohio 1991, 775 F. Supp. 1113 . . . . . . . . 24 Red Ball Interior Demolition Corp. v. Palmadessa, S.D.N.Y. 1995, 908 F.Supp. 1226 . . . . . . . . . 23 Standard Chlorine of Delaware, Inc. v. Sinibaldi, D.Del. 1992, 821 F.Supp. 232 . 22

U.S. v. Gigante, D.N.J. 1990, 737 F.Supp. 292 . . . . . 25

Venzor v. Gonzalez, N.D. Ill. 1996, 936 F. Supp. 445 . . . . 24

Yancoski v. E.F. Hutton & Co. Inc. F.D. Pa. 1983, 581 F.Supp. 88 . . . 24

Yellow Bus Lines, Inc. v. Drivers, Chauffeurs & Helpers Local Union 639, C.A.D.C. 1990, 913 F.2d 948, 286 U.S. App. D.C. 182, certiorari denied 111 S.Ct. 2839, 501 U.S. 1222, 115 2d 1007 . . . . . 22

Statement of the case

Murrell and Carolyn Foster filed two actions to try trespass to title for property

held in two Texas counties. The Fosters’ actions were diverted by fraud and other

subterfuge into private courts of the American Bar Association and its subunit the State

Bar of Texas. In the sham proceedings that followed, including the sham legal process of

the Sixth Appellate District of Texas, the Fosters never saw a court of competent

jurisdiction. The “courts” the Fosters were subjected to had nothing whatsoever to do

with The Constitution of the United States, The Constitution of Texas, or any of the

common law authorities of either, nor of any statutory authority of Texas or common law

thereunder; and, the phony proceedings glaringly vitiated the rule of law and due process

as clearly delineated in The Texas Rules of Civil Procedure and Texas Rules of Evidence.

These farcical, sham proceedings do not pose a political question to this court. These

farcical, sham proceedings require this court’s inquiry into the American Bar

Association’s perversion of American courts and use of American courts for the purposes

of fraud and extortion. This subject has been touched on obliquely in comments by Edith

Jones. “The American legal system has been corrupted almost beyond recognition,”

Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit, told the Federalist

Society of Harvard Law School on February 28. She said that the question of what is

morally right is routinely sacrificed to what is politically expedient. The change has come

because legal philosophy has descended to nihilism. "The integrity of law, its religious

71

roots, its’ transcendent quality are disappearing. I saw the movie 'Chicago' with Richard

Gere the other day. That's the way the public thinks about lawyers," she told the students.

"The first 100 years of American lawyers were trained on Blackstone, who wrote that:

'The law of nature dictated by God himself is binding in all counties and at all times; no

human laws are of any validity if contrary to this; and such of them as are valid derive all

force and all their authority from this original.' The Framers created a government of

limited power with this understanding of the rule of law - that it was dependent on

transcendent religious obligation," said Jones. She said that the business about all of the

Founding Fathers being deists is "just wrong," or "way overblown." She says they

believed in "faith and reason," and this did not lead to intolerance. "This is not a

prescription for intolerance or narrow sectarianism," she continued, "for unalienable

rights were given by God to all our fellow citizens. Having lost sight of the moral and

religious foundations of the rule of law, we are vulnerable to the destruction of our

freedom, our equality before the law and our self-respect. It is my fervent hope that this

new century will experience a revival of the original understanding of the rule of law and

its roots. The answer is a recovery of moral principle, the sine qua non of an orderly

society. Post 9/11, many events have been clarified. It is hard to remain a moral relativist

when your own people are being killed." According to the judge, the first contemporary

threat to the rule of law comes from within the legal system itself. Alexis de Tocqueville,

author of Democracy in America and one of the first writers to observe the United States

from the outside looking in, "described lawyers as a natural aristocracy in America,"

Jones told the students. "The intellectual basis of their profession and the study of law

based on venerable precedents bred in them habits of order and a taste for formalities and

predictability." As Tocqueville saw it, "These qualities enabled attorneys to stand apart

from the passions of the majority. Lawyers were respected by the citizens and able to

guide them and moderate the public's whims. Lawyers were essential to tempering the

potential tyranny of the majority. "Some lawyers may still perceive our profession in this

flattering light, but to judge from polls and the tenor of lawyer jokes, I doubt the public

shares Tocqueville's view anymore, and it is hard for us to do so. "The legal aristocracy

have shed their professional independence for the temptations and materialism associated

with becoming businessmen. Because law has become a self-avowed business, pressure

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mounts to give clients the advice they want to hear, to pander to the clients' goal through

deft manipulation of the law. While the business mentality produces certain benefits, like

occasional competition to charge clients lower fees, other adverse effects include

advertising and shameless self-promotion. The legal system has also been wounded by

lawyers who themselves no longer respect the rule of law." The judge quoted Kenneth

Starr as saying, "It is decidedly unchristian to win at any cost," and added that most

lawyers agree with him. However, "An increasingly visible and vocal number apparently

believe that the strategic use of anger and incivility will achieve their aims. Others seem

uninhibited about making misstatements to the court or their opponents or destroying or

falsifying evidence," she claimed. "When lawyers cannot be trusted to observe the fair

processes essential to maintaining the rule of law, how can we expect the public to

respect the process?" Lawsuits Do Not Bring 'Social Justice.' Another pernicious

development within the legal system is the misuse of lawsuits, according to her. "We see

lawsuits wielded as weapons of revenge," she says. "Lawsuits are brought that ultimately

line the pockets of lawyers rather than their clients. The lawsuit is not the best way to

achieve social justice, and to think it is, is a seriously flawed hypothesis. There are better

ways to achieve social goals than by going into court." Jones said that employment

litigation is a particularly fertile field for this kind of abuse. "Seldom are employment

discrimination suits in our court supported by direct evidence of race or sex-based

animosity. Instead, the courts are asked to revisit petty interoffice disputes and to infer

invidious motives from trivial comments or work-performance criticism. Recrimination,

second-guessing and suspicion plague the workplace when tenuous discrimination suits

are filed creating an atmosphere in which many corporate defendants are forced into

costly settlements because they simply cannot afford to vindicate their positions. While

the historical purpose of the common law was to compensate for individual injuries, this

new litigation instead purports to achieve redistributive social justice. Scratch the surface

of the attorneys' self-serving press releases, however, and one finds how enormously

profitable social redistribution is for those lawyers who call themselves 'agents of

change.'" Jones wonders, "What social goal is achieved by transferring millions of dollars

to the lawyers, while their clients obtain coupons or token rebates." The judge quoted

George Washington who asked in his Farewell Address, "Where is the security for

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property, for reputation, for life, if the sense of religious obligation desert the oaths in

courts of justice?" Similarly, asked Jones, how can a system founded on law survive if

the administrators of the law daily display their contempt for it? "Lawyers' private

morality has definite public consequences," she said. "Their misbehavior feeds on itself,

encouraging disrespect and debasement of the rule of law as the public become

encouraged to press their own advantage in a system they perceive as manipulatable."

The second threat to the rule of law comes from government, which is encumbered with

agencies that have made the law so complicated that it is difficult to decipher and often

contradicts itself. "Agencies have an inherent tendency to expand their mandate," says

Jones. "At the same time, their decision-making often becomes parochial and short-

sighted. They may be captured by the entities that are ostensibly being regulated, or they

may pursue agency self-interest at the expense of the public welfare. Citizens left at the

mercy of selective and unpredictable agency action have little recourse." Jones

recommends three books by Philip Howard: The Death of Common Sense, The Collapse

of the Common Good, and The Lost Art of Drawing the Line, which further delineate this

problem. The third and most comprehensive threat to the rule of law arises from

contemporary legal philosophy. "Throughout my professional life, American legal

education has been ruled by theories like positivism, the residue of legal realism, critical

legal studies, post-modernism and other philosophical fashions," said Jones. "Each of

these theories has a lot to say about the 'is' of law, but none of them addresses the 'ought,'

the moral foundation or direction of law." Jones quoted Roger C. Cramton, a law

professor at Cornell University, who wrote in the 1970s that "the ordinary religion of the

law school classroom" is "a moral relativism tending toward nihilism, a pragmatism

tending toward an amoral instrumentalism, a realism tending toward cynicism, an

individualism tending toward atomism, and a faith in reason and democratic processes

tending toward mere credulity and idolatry." No 'Great Awakening' In Law School

Classrooms. The judge said ruefully, "There has been no Great Awakening in the law

school classroom since those words were written." She maintained that now it is even

worse because faith and democratic processes are breaking down. "The problem with

legal philosophy today is that it reflects all too well the broader post-Enlightenment

problem of philosophy," Jones said. She quoted Ernest Fortin, who wrote in Crisis

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magazine: "The whole of modern thought has been a series of heroic attempts to

reconstruct a world of human meaning and value on the basis of our purely mechanistic

understanding of the universe." Jones said that all of these threats to the rule of law have

a common thread running through them, and she quoted Professor Harold Berman to

identify it: "The traditional Western beliefs in the structural integrity of law, its

ongoingness, its religious roots, its transcendent qualities, are disappearing not only from

the minds of law teachers and law students but also from the consciousness of the vast

majority of citizens, the people as a whole; and more than that, they are disappearing

from the law itself. The law itself is becoming more fragmented, more subjective, geared

more to expediency and less to morality. The historical soil of the Western legal tradition

is being washed away and the tradition itself is threatened with collapse." Judge Jones

concluded with another thought from George Washington: "Of all the dispositions and

habits which lead to prosperity, religion and morality are indispensable supports. In vain

would that man claim the tribute of patriotism who should labor to subvert these great

pillars of human happiness - these firmest props of the duties of men and citizens." Upon

taking questions from students, Judge Jones recommended Michael Novak's book, On

Two Wings: Humble Faith and Common Sense. "Natural law is not a prescriptive way to

solve problems," Jones said. "It is a way to look at life starting with the Ten

Commandments." Natural law provides "a framework for government that permits

human freedom," Jones said. "If you take that away, what are you left with? Bodily

senses? The will of the majority? The communist view? What is it - 'from each

according to his ability, to each according to his need?' I don't even remember it, thank

the Lord," she said to the amusement of the students. "I am an unabashed patriot - I think

the United States is the healthiest society in the world at this point in time," Jones said,

although she did concede that there were other ways to accommodate the rule of law,

such as constitutional monarchy. "Our legal system is way out of kilter," she said. "The

tort litigating system is wreaking havoc. Look at any trials that have been conducted on

TV. These lawyers are willing to say anything." Potential Nominee to Supreme Court,

Judge Edith Jones has been mentioned as a potential nominee to the Supreme Court in the

Bush administration, but does not relish the idea. "Have you looked at what people have

to go through who are nominated for federal appointments? They have to answer

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questions like, 'Did you pay your nanny taxes?' 'Is your yard man illegal?' "In those

circumstances, who is going to go out to be a federal judge? People who have

accomplished nothing. In other words, federal employees." Source - Geraldine Hawkins,

March 7, 2003, www.massnews.com. A question exists: Do Edith Jones and her

associates on the Fifth Circuit Bench have the courage of their convictions? Can they

handle the truth? The Fosters literally threw away a six figure sum of money relying on

so-called licensed bar associates to protect their property interests only to find the courts

of Texas, state and federal, controlled by the bars, infested with many who would tell any

lie, violate any rule, break any law, or commit any crime necessary to defraud and extort

the Fosters of well over one and one half million dollars, in spite of the best efforts of the

Fosters’ lawyers – the reason being, the proceedings in the “courts” were not cognizable

within The Constitution of the United States, The Constitution of Texas, any of the

common law authorities of either, nor of any statutory authority of Texas, nor common

law thereunder, or The Texas Rules of Civil Procedure and Texas Rules of Evidence.

Making a practical business decision, if investing vast sums in “licensed bar associates”

has the result of literally being robbed, Americans should rely on the tremendous

explosion of Internet resources and do their own lawyering, the Fosters proceeded on

their own behalf. The Fosters have yet to see a court of competent jurisdiction. At every

turn, the phonies {frauds} Donald W. Capshaw, Bill Peek, Billy Moye, Raymond W.

Jordan, Valerie Farwell, Billy Fox Branson, Lanny Ramsey, William J. Cornelius,

Caroline Craven, Margaret J. Reeves, and T. JOHN WARD, removed the Fosters to the

private venue of the bars where literally anything goes. After having made a record that

Donald W. Capshaw, Bill Peek, Billy Moye, Raymond W. Jordan, Valerie Farwell, Billy

Fox Branson, Lanny Ramsey, William J. Cornelius, and Margaret J. Reeves, all either

members of or beholden to the bars, either committed fraud or aided and abetted fraud,

the Fosters, as is their right, proceeded into federal court for a jury’s determination

regarding Donald W. Capshaw, Bill Peek, Billy Moye, Raymond W. Jordan, Valerie

Farwell, Billy Fox Branson, Lanny Ramsey, William J. Cornelius, and Margaret J.

Reeves’ flagrant violations of 18 USC 1964(a); however, in federal court, the Fosters

encounterd two additional miscreants, Caroline Craven and T. John Ward. Neither

Craven nor Ward have complied with statutory authority to take an oath to uphold The

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Constitution of The United States of America. (Actually, Ward would later make a

pretext of the oath issue, which reveals Ward’s reading of law is selective at best, still

leaving Ward out of compliance with the oath requirement.) Ward, true to his business

interests in the bars, handled the Foster racketeering suit out of court. It is most

conspicuous that defendant, the American Bar Association, having notice and

opportunity, failed to answer, exemplifying a demeanor of “the American Bar

Association is a regal power, a power above law.”

Statement of Facts Relevant to the Issues Presented for Review

Murrell and Carolyn Foster established the following facts on record in the court

below: (1). Donald W. Capshaw, a member of the enterprise the State Bar of Texas on

August 8th, 2001, at about ten a.m., at 2900 St. Michael Drive in Texarkana, Texas,

committed two frauds by advancing two writings which he signed and which he knew

were false with the intent that the Fosters and others rely on the writings to injure the

Fosters by depriving the Fosters of property and business interests. Mr. Capshaw twice,

knowingly, falsely wrote that the Fosters’ claim to end trespass to the Foster homestead

was barred by state law. Mr. Capshaw succeeded in defrauding the Fosters of business

and property interests with this subterfuge. (2). Bill Peek, on August 27th, 2001,

beginning about ten a.m., at New Boston, Texas, aided and abetted the fraud of Donald

W. Capshaw by first conducting an ex parte meeting with Mr. Capshaw, then willfully

acceding to the August 8th, 2001, fraud of Mr. Capshaw that the Fosters’ claim to end

trespass to the Foster homestead was barred by state law. Mr. Peek empowered Mr.

Capshaw to succeed in defrauding the Fosters of business and property interests. Bill

Peek also let it be known that he was acting as a servant to the State Bar of Texas and not

as an arbiter of Texas law. (3). Donald W. Capshaw, on August 27th , 2001, at about three

p.m., at New Boston, Texas, committed fraud by advancing a writing which he signed

and which he knew was false with the intent that the Fosters and others rely on the

writing to injure the Fosters by depriving the Fosters of property and business interests.

Mr. Capshaw knowingly, falsely wrote that the Fosters’ claim to end trespass to the

Foster homestead was barred by state law. Mr. Capshaw succeeded in defrauding the

Fosters of business and property interests with this subterfuge. (4). Bill Peek, on

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September 10th, 2001, beginning about one p.m., at New Boston, Texas, aided and

abetted the fraud of Donald W. Capshaw by willfully acceding to the August 27th, 2001

fraud of Mr. Capshaw that the Fosters’ claim to end trespass to the Foster homestead was

barred by state law. Mr. Peek empowered Mr.Capshaw to succeed in defrauding the

Fosters of business and property interests. (5). Bill Peek, on September 7, 2001, at about

three p.m., at New Boston, Texas, committed fraud by advancing a writing which he

signed and which he knew was false with the intent that the Fosters and others rely on the

writing to injure the Fosters by depriving the Fosters of property and business interests.

Mr. Peek knowingly, falsely incorporated in his writing that the Fosters’ claim to end

trespass to the Foster homestead was barred by state law. Mr. Peek succeeded in

defrauding the Fosters of business and property interests with this subterfuge. (6). Bill

Peek, on September 10, 2001, at about three p.m., at New Boston, Texas, committed

fraud by advancing a writing which he signed and which he knew was false with the

intent that the Fosters and others rely on the writing to injure the Fosters by depriving the

Fosters of property and business interests. Mr. Peek knowingly, falsely incorporated in

his writing that the Fosters’ claim to end trespass to the Foster homestead was barred by

state law. Mr. Peek succeeded in defrauding the Fosters of business and property interests

with this subterfuge. (7). Raymond W. Jordan, a member of the enterprise the State Bar

of Texas, on September 12th, 2001, at about ten a.m., at 5301 Summerhill Road in

Texarkana, Texas, committed fraud by advancing a writing which he signed and which

he knew was false with the intent that the Fosters and others rely on the writing to injure

the Fosters by depriving the Fosters of property and business interests. Mr. Jordan

knowingly, falsely wrote that the Fosters’ claim to end trespass to the Foster homestead

was barred by state law. Mr. Jordan succeeded in defrauding the Fosters of business and

property interests with this subterfuge. (8). Bill Peek, on October 10, 2001, at about three

p.m., at New Boston, Texas, committed fraud by advancing a writing which he signed

and which he knew was false with the intent that the Fosters and others rely on the

writing to injure the Fosters by depriving the Fosters of property and business interests.

Mr. Peek knowingly, falsely incorporated in his writing that the Fosters’ claim to end

trespass to the Foster homestead was barred by state law. Mr. Peek succeeded in

defrauding the Fosters of business and property interests with this subterfuge. (9).

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Raymond W. Jordan, on September 12th, 2001, at about ten a.m., at 5301 Summerhill

Road in Texarkana, Texas, committed fraud by advancing a writing which he signed and

which he knew was false with the intent that the Fosters and others rely on the writing to

injure the Fosters by depriving the Fosters of property and business interests. Mr. Jordan

knowingly, falsely wrote that the Fosters’ claim to end trespass to the Foster homestead

was barred by state law. Mr. Jordan succeeded in defrauding the Fosters of business and

property interests with this subterfuge. (10). Margaret J. Reeves, beginning on November

28th, 2001, at about three p.m., and continuing through about three p.m. on May 14th,

2002, from Austin, Texas, had constructive knowledge of misconduct of Bill Peek,

including a means to know of Mr. Peek’s criminal misconduct. Ms. Reeves had a duty to

make inquiry, reasonable under the circumstances, and secure the prosecution of Bill

Peek. Margaret J. Reeves was willfully blind and recklessly disregarded Bill Peek’s

criminal misconduct and its affect on the Fosters. Margaret J. Reeves aided and abetted

the frauds of Capshaw, Peek, and Jordan, resulting in defrauding the Fosters of business

interests and property. (11). Raymond W. Jordan, on December 12th, 2001, at about ten

a.m., at 5301 Summerhill Road in Texarkana, Texas, committed fraud by advancing a

writing which he signed and which he knew was false with the intention that the Fosters

and others rely on the writing to injure the Fosters by depriving the Fosters of property

and business interests. Mr. Jordan knowingly, falsely wrote that the Fosters’ claim to end

trespass to the Foster homestead was barred by state law. Mr. Jordan succeeded in

defrauding the Fosters of business and property interests with this subterfuge. (12).

Raymond W. Jordan, on January 2nd, 2002, at about ten a.m., at 5301 Summerhill Road in

Texarkana, Texas, committed fraud by advancing a writing which he signed and which

he knew was false with the intent that the Fosters and others rely on the writing to injure

the Fosters by depriving the Fosters of property and business interests. Mr. Jordan

knowingly, falsely wrote that court records didn’t specify why Butler and Linda Roberts’

putative deed to my homestead property was void when Mr. Jordan knew that the record

showed in exhaustive detail that the Roberts’ alleged deed was void on its face. Mr.

Jordan succeeded in defrauding the Fosters of business and property interests with this

subterfuge. (13). Lanny Ramsey, on February 13, 2002, at about two p.m., at New

Boston, Texas, committed fraud by claiming that four un-rebutted affidavits were not

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evidence. This fraud by Lanny Ramsey was in reckless disregard of the Fosters’ interests

and did in fact aid and abet in Peek, Capshaw, and Jordan defrauding the Fosters of

property and business interests. (14). Lanny Ramsey, on February 15th, 2002, at about

two p.m., at New Boston, Texas, committed fraud by signing and advancing a writing

which he knew was false. The writing that Mr. Ramsey claimed as his own and signed

falsely asserted that February 13th, 2002, the Fosters had entered no evidence on the

record in support of the Fosters’ claims when he knew that the Fosters had entered four

un-rebutted affidavits on the record in support of the Fosters’ claims. This fraud by

Lanny Ramsey was in reckless disregard of the Fosters’ interests and did in fact aid and

abet in Peek, Capshaw, and Jordan defrauding the Fosters of property and business

interests. (15). Donald W. Capshaw, on September 4th, 2001, at about two p.m., at

Clarksville, Texas, committed fraud by making statements which he knew were false

with the intent that the Fosters and others rely on the statements to injure the Fosters by

depriving the Fosters of property and business interests. Mr. Capshaw knowingly, falsely

stated that the Fosters’ claim to end trespass to the Foster homestead was barred by state

law. Mr. Capshaw succeeded in defrauding the Fosters of business and property interests

with this subterfuge. (16). Donald W. Capshaw, on October 23rd, 2001, at about ten a.m.,

at 2900 St. Michael Drive in Texarkana, Texas, committed fraud by advancing writings

which he signed and which he knew were false with the intent that the Fosters and others

rely on the writings to injure the Fosters by depriving the Fosters of property and

business interests. Mr. Capshaw knowingly, falsely wrote that the Fosters’ claim to end

trespass to the Foster homestead was barred by state law when he knew that his effective

bar to the Fosters’ claim was based on the private prior agreements and secret

determinations of the American Bar Association and the State Bar of Texas. Mr.

Capshaw succeeded in defrauding the Fosters of business and property interests with this

subterfuge. (17). Donald W. Capshaw, on November 6th, 2001, at about one p.m., at

Clarksville, Texas, committed fraud by stating that Red River County was not the proper

venue for action for trespass to property in Red River County and that the Fosters’ claim

was barred by Texas State Law. Mr. Capshaw knew that these statements were false and

made them with intent to defraud the Fosters of property and business interests, a crime

he succeeded in. (18). Billy Dale Moye, on November 6th, 2001, beginning about one

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p.m., at Clarksville, Texas, committed fraud by impersonating a judge. This fraud by

Billy Dale Moye effected defrauding the Fosters of the Fosters’ property and business

interests. (19). Billy Dale Moye, on November 6th, 2001, beginning about one p.m., at

Clarksville, Texas, aided and abetted fraud by acceding to Donald W. Capshaw’s frauds

that Red River County was not the proper venue for action for trespass to property in Red

River County and that the Fosters’ claim was barred by Texas State Law. Billy Dale

Moye’s aiding and abetting of the frauds of Donald W. Capshaw effected defrauding the

Fosters of the Fosters’ property and business interests. November 6th, 2001, Billy Dale

Moye let it be known in certain terms that he was acting as the servant of the business

interests of the State Bar of Texas. (20). Billy Dale Moye, on November 6th, 2001, about

three p.m., at Clarksville, Texas, committed fraud by signing and advancing a writing

which he knew he did not have the authority to sign and in which he perpetuated the

frauds of Donald W. Capshaw regarding the venue of Red River County and Texas state

law. These frauds of Billy Dale Moye effected defrauding the Fosters of our property and

business interests. (21). Billy Dale Moye, on December 19th, 2001, about three p.m., at

Clarksville, Texas, committed fraud by signing and advancing a writing which he knew

he did not have the authority to sign and in which he perpetuated the fraud of Donald W.

Capshaw regarding Texas state law. These frauds of Billy Dale Moye effected defrauding

the Fosters of the Fosters’ property and business interests. (22). Billy Fox Branson,

March 28th, 2002, at about two p.m., at New Boston, Texas, perjured herself by claiming

that a court record contained no evidence of notice of an appeal being filed. This fraud by

Billy Fox Branson defrauded the Fosters of property and business interests. (23). Valerie

S. Farwell, March 28th, 2002, at about two p.m., at Texarkana, Texas, committed two

frauds. Valerie Farwell claimed that there had been no fact finding in Bowie County case

number 01C1038-202 and claimed that Texas homesteaders can be deprived of their

homesteads based on no law at all. These frauds by Valerie S. Farwell defrauded the

Fosters of property and business interests. (24). Valerie S. Farwell, April 1st, 2002, at

about two p.m., at Texarkana, Texas, committed fraud by advancing a writing which she

knew was false by claiming that the Fosters could be defrauded based on Texas Law. The

fraud by Valerie, perpetrated by Valerie, defrauded the Fosters of property and business

interests. (25). William J. Cornelius, on May 8th, 2002, at about two p.m., at Texarkana,

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Texas, committed two frauds. William J. Cornelius claimed that there had been no fact

finding in Bowie County case number 01C1038-202 and claimed that Texas

homesteaders can be deprived of their homesteads based on no law at all. These frauds by

William J. Cornelius defrauded the Fosters of property and business interests. (26).

William J. Cornelius, on May 21st, 2002, at about two p.m., at Texarkana, Texas, re-

committed the two frauds. William J. Cornelius claimed that there had been no fact

finding in Bowie County case number 01C1038-202 and claimed that Texas

homesteaders can be deprived of their homesteads based on no law at all. These frauds by

William J. Cornelius defrauded the Fosters of property and business interests. (27).

Beginning March 25th, 2002 and repeating, Valerie S. Farwell, from Texarkana, Texas,

committed a pattern of frauds by altering a court record. The fraud by Valerie defrauded

the Fosters of property and business interests. (28). Beginning no later than June 12th,

2002 inclusive and repeating, Caroline Craven, from Texarkana, Texas, committed a

pattern of frauds by altering a court record. These frauds by Caroline Craven defrauded

the Fosters of property and business interests. (29). June 28th, 2002, Caroline Craven,

from Texarkana, Texas, committed a series of additional frauds, including claiming that

changing a person’s name on a court record was immaterial when she had possession of a

Texas State record verifying the correct name, falsely claiming that the Fosters had not

answered a motion when she knew that the Fosters did, falsely claiming that Billy Dale

Moye had answered the Fosters’ complaint when she knew he had not, falsely and

fraudulently asserting that an unverified motion to dismiss can be lawfully noticed by a

court, and fraudulently asserting that exclusive remedy to a motion to dismiss is to

appeal. These frauds by Caroline Craven defrauded the Fosters of property and business

interests. Caroline Craven’s demeanor at all times was to instruct and inform that the

secret rules of the bar associations control her and not the laws of Texas or the United

States. (30). At all times, dealing with all respondents named, it was made perfectly clear

to the Fosters that all of them were part of an enterprise which had no sense of morality,

decency, fair play, or ethics whatsoever. All openly and arrogantly proclaim themselves

to be false actors operating outside the law. NONE OF THE RESPONDENTS

ENTERED ANY FACTS ON THE RECORD. REPEAT: NONE OF THE

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RESPONDENTS ENTERED SO MUCH AS ONE SINGLE FACT ON THE RECORD

IN THE COURT BELOW.

Statement of the issues

(1). T. John Ward wanted subject matter jurisdiction to dismiss Murrell and

Carolyn Foster’s racketeering suit against corrupt business organizations to which Ward

belongs. Ward’s presuming jurisdiction to be judge of a cause where Ward confessed

being a member in good standing of the businesses which were named as respondents

violates The Code of Conduct for United States Judges.

(2). The contumacious T. John Ward contravened the rule making authority of

The United States Supreme Court and circumvented the Federal Rules of Civil Procedure

to handle matters in the court below extra-judicially, extra-legally and non-judicially in a

forum cognizable only as coram non judice.

Argument and authorities

(1). T. John Ward wanted subject matter jurisdiction to rule and determine in the

underlying cause for reason of violation of the Code of Conduct for United States

Judges. T. John Ward stated very clearly that he is a business associate of all the

defendants, and as a member of the private, exclusive business organizations, “American

Bar Association” and “State Bar of Texas,” was a stakeholder in the outcome of the

proceedings in the court below. Code of Conduct for United States Judges, Canon 3: A

judge should perform the duties of the office impartially and diligently. A. Adjudicative

Responsibilites, (1). A judge should be faithful to and maintain professional competence

in the law, and should not be swayed by partisan interests . . . C. Disqualification, (1). A

judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality

might reasonably be questioned, including but not limited to instances in which (c) the

judge knows that the judge, individually . . . has a financial interest in the subject matter

in controversy or in a party to the proceeding, or any other interest that could be affected

substantially by the outcome of the proceeding, (d) the judge . . . (iii) is known by the

judge to have an interest that could be substantially affected by the outcome of the

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proceeding . . . (3) (c) “financial interest” means ownership of a legal or equitable

interest, however small, or a relationship as director, advisor, or other active participant

in the affairs of a party.

(2). This court shall notice that the Fosters, in their complaint, testified of injury

to property and business by reason of acts which violate section 4 of the Clayton Act in

as much as all actors clearly articulated that only the bars had standing in their courts.

Attick v. Valeria Associates, L.P., S.D. N.Y. 1992, 835 F. Supp. 103. The Fosters

articulated violation of racketeering laws, testifying that the violations injured both

business and property warranting treble damages, Avirgan v. Hull, C.A. 11 (Fla.) 1991,

932 F.2d 1572. In naming the bars to which all actors belong, the Fosters established that

an enterprise exists which undeniably affects interstate commerce, Yellow Bus Lines, Inc.

v. Drivers, Chauffeurs & Helpers Local Union 639, C.A.D.C. 1990, 913 F.2d 948, 286

U.S. App. D.C. 182, certiorari denied 111 S.Ct. 2839, 501 U.S. 1222, 115 2d 1007. The

Fosters had standing to sue under RICO as they had shown violation of RICO, injury to

business and property, and causation of the injury by the violation, Hecht v. Commerce

Clearing House, Inc., C.A. 2 (N.Y.) 1990, 897 F.2d 21, 100 A.L.R. Fed. 655. The Fosters

perfected a RICO claim by showing the existence of a RICO enterprise = the bars,

showing a pattern of racketeering activity (fraud, see affidavits un-rebutted), shown

nexus between the defendants and the pattern of frauds, and shown resulting injury to

business and property, Standard Chlorine of Delaware, Inc. v. Sinibaldi, D.Del. 1992,

821 F. Supp. 232. The Fosters demonstrated that they sustained injury as proximate result

of the pattern of frauds by the defendants, Jordan v. Herman, F.D. Pa. 1992, 792 F. Supp.

380. The defendants required membership in the enterprise, the bars, to be privileged to

do bar business, both direct and indirect investment by the defendants in the bar’s

enterprise affecting interstate commerce, Nassau-Suffolk Ice Cream, Inc. v. Integrated

Resources, Inc., S.D.N.Y. 1987, 114 F.R.D. 684. The Fosters clearly articulated

deprivation of their homestead business property and rents thereon, Polletier v. Zweifel,

C.A. 11 (Ga.) 1991, 921 F.2d 1465, rehearing denied 931 F.2d 901, certiorari denied 112

S.Ct. 167, 502 U.S. 855, 116 131. The “cause-in-fact that but-for” the chicanery of the

defendants, Murrell and Carolyn Foster would be occupying their Constitutional

84

homestead and be in receipt of compensation for rents is sufficient to state factual

causation for provision of RICO act providing for treble damages, Khurana v. Innovative

Heath Care Systems, Inc., C.A. 5 (La.) 1997, 130 F.3d 143, vacated 119 S.Ct. 442, 525

U.S. 979, 142 2d 397, on remand 164 F.3d 900. The Fosters’ reliance on traditional

principles of proximate causation applying to RICO cases is illustrated in the well

pleaded, un-rebutted testimony that they were deprived of their Constitutional homestead

and associated damages by predicate acts of the defendants, In re American Honda Motor

Co., Inc. Dealership Relations Litigation, D.Md. 1996, 941 F.Supp. 528. There exists an

undenied relationship between the acts of the defendants and the damage to property and

business interests of the Fosters, Red Ball Interior Demolition Corp. v. Palmadessa,

S.D.N.Y. 1995, 908 F.Supp. 1226. The damage caused by the defendants was the natural

and reasonably foreseeable consequence of the frauds promulgated by the defendants,

Protter v. Nathan’s Famous Systems, Inc., E.D. N.Y. 1995, 904 F.Supp. 101. The fraud

by the defendants was the legal cause of the Fosters being deprived of their Constitutional

homestead and related damages, Prudential Ins. Co. of America v. U.S. Gypsum Co.,

D.N.J. 1993, 828 F.Supp. 287. The enterprise of the bar is evident to a high degree and it

is also evident to a high degree that associates such as the defendants act as a continuing

{concerted} unit, Compagnie de Reassuarance D’lle de France v. New England

Reinsurance Corp., D. Mass. 1993, 825 F.Supp. 370. It is undeniable that the defendants

received money for defrauding Murrell and Carolyn Foster and their payments to the bar

represents their necessary investment in the bar for the continuing privilege of, in the

vernacular, continuing to commit fraud and extortion through sham legal proceedings,

Grand Cent. Sanitation, Inc. v. First Nat. Bank of Palmerton, M.D. Pa. 1992, 816 F.Supp.

299. Undeniably, the defendants have usurped the courts and used them for purposes of

fraud and extortion, Randolph County Federal Sav. & Loan Assoc. v. Sutliffe, S.D. Ohio

1991, 775 F. Supp. 1113. Where persons arrange to fix contests, claim for civil RICO

rises, Venzor v. Gonzalez, N.D. Ill. 1996, 936 F. Supp. 445. No particular RICO injury

need be proven to maintain a civil RICO action, Miller v. Affiliated Financial Corp., N.D.

Ill. 1984, 600 F.Supp. 987. A showing of competitive injury is not required before a civil

claim under RICO can be stated, Yancoski v. E.F. Hutton & Co. Inc., F.D. Pa. 1983, 581

F.Supp. 88. Commercial loss is not required for recovery of damages under this section,

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Gitterman v. Vitoulis, S.D. N.Y. 1982, 564 F.Supp. 46. Plaintiff in racketeering action

need only establish that predicate acts were proximate cause of injury, Minpeco, S.A. v.

Hunt, S.D.N.Y. 1989, 718 F.Supp. 168. Relying on communicated misrepresentations,

like the false documents advanced by Capshaw and Jordan, caused loss sufficient to state

claim under RICO, Florida Dept. Ins. v. Debenture Guar., M.D. Fla. 1996, 921 F.Supp.

750. Aiding and abetting such as clearly articulated in respect of some of the respondents

warrants liability under RICO, In re Sahlen & Associates, Inc. Securities Litigation, S.D.

Fla.1991, 773 F.Supp. 342. Standing is conferred on a “RICO” where plaintiff’s business

or property has been injured by reason of conduct constituting a RICO violation, Buck

Creek Coal, Inc. v. United Workers of America, S.D. Ind. 1995, 917 F.Supp. 601. To state

a RICO claim, private plaintiff must allege that he suffered an injury in his business or

property by reason of a violation of the Act, In re Phar-Mor, Inc. Securities Litigation,

W.D. Pa. 1994, 900 F.Supp. 777. Proof by a preponderance of the evidence is sufficient

to finding of liability in a civil RICO action, Liquid Air Corp. v. Rogers, C.A. 7 (Ill.)

1987, 834 F.2d 1297. The Fosters testified that the defendants committed or aided and

abetted two or more acts of fraud, which were part of a pattern of racketeering activity by

direct participants in an enterprise affecting interstate commerce and that they were

injured in their property and business interests, Poeter v. Shearson Lehman Bros. Inc.,

S.D. Tex. 1992, 802 F.Supp. 41. The Fosters testified that the defendants misrepresented

Texas laws as to material facts with deliberate disregard of truth, Guiliano v. Everything

Yogert, Inc., E.D. N.Y. 1993, 819 F.Supp. 626. The Fosters testified that the defendants

acted with reckless disregard for their interests, adequately alleging intent under RICO,

Babst v. Morgan Keegan & Co., E.D. La. 1988, 687 F.Supp. 255. Civil RICO complaint

identified alleged predicate acts with sufficient particularity, where complaint not only

specified the type of predicate acts committed, including extortion, but identified

approximate date, participants, victims, and general methods by which acts were

committed, U.S. v. Gigante, D.N.J. 1990, 737 F.Supp. 292. Plaintiffs who file civil

actions under RICO Act need not present allegations as specific as criminal bill of

particulars, nor establish probable cause to believe that defendant committed predicate

racketeering offenses, Frank E. Basil, Inc. v. Leidesdorf, N.D. Ill. 1989, 713 F.Supp.

1194. Sufficiency of pleading of RICO conspiracy claim is not subject to higher

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pleading standard of civil rule for fraud claims, In re Crazy Eddie Securities

Litigation, E.D. N.Y. 1990, 747 F.Supp. 850. A claim that the bar’s bad behavior is

not regular, ongoing and likely to recur is absurd. Cite omitted. Extortionate conduct,

well documented as the way the bar conducts bar enterprises poses a threat of continuing

racketeering activity, O’Rourke v. Crosley, D.N.J. 1994, 847 F.Supp. 1208.

Remedy Sought

It is inappropriate and in violation of the Code of Conduct for United States

Judges and the Code of Conduct for Judicial Employees to have anything whatsoever to

do with this appeal if a member of either the American Bar Association or the State Bar

of Texas. (2). The order of Ward is facially void for violation of judicial canon. (3).

Standard of review for summary judgment is de novo.

De novo review of the record made in the court below verifies that Murrell and

Carolyn Foster stated a lawful claim under authority of 18 USC 1964(a) and supported

their claim with affidavits, which were not rebutted, meaning exactly one thing and one

thing only: Murrell and Carolyn Foster were lawfully entitled to summary judgment

against Donald W. Capshaw, Bill Peek, Billy Moye, Raymond W. Jordan, Valerie

Farwell, Billy Fox Branson, Lanny Ramsey, William J. Cornelius, Caroline Craven,

Margaret J. Reeves, the American Bar Association, and the State Bar of Texas in a sum

of not less than one and one-half million dollars AND it is mandated by the rule of law

that RICO enterprises, the American Bar Association and the State Bar of Texas, shall be

dissolved, never to afflict the citizens of Texas and America with the bar’s schemes of

fraud and extortion again.

Prepared and submitted by: _________________________________________________

Murrell Foster Carolyn Foster

CERTIFICATE OF SERVICE

I, Murrell Foster, certify that on March ____, 2003, I mailed a true and correct

copy of the above and foregoing appellant’s opening brief via first class mail to:

Valerie Farwell Donald W. Capshaw, et al.

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SECTION SIX: Dealing with administrative authority Workbook assignment: What is your state’s authority for judicial review of an administrative action? _____________________________________________________ What has the United States Supreme Court Ruled and Determined regarding a state’s abilities to require licenses? ________________________________________________________________________________________________________________________________________________ Tony Goodguy P.O. Box 354892 Hopeful Meadows, Arkansas 72000 (501)555-8888 On my own behalf

IN THE CIRCUIT COURT FOR FILLPOT COUNTY STATE OF ARKANSAS

Tony Goodguy, ) No. CV-4848 ) Plaintiff ) ) vs. ) ) STATE OF ARKANSAS ) Contractors Licensing Board ) ) Defendant. ) ____________________________________)

PETITION FOR JUDICIAL REVIEW OF AN ADMINISTRATIVE

ACTION UNDER ARKANSAS CODE SECTION 25-15-2

1. Tony Goodguy, an aggrieved party, petitions this court for judicial review of an

administrative “adjudication” under authority of Arkansas Code Section 25-15-2. A copy of

the final determination is attached as exhibit “A.”

2. July 16, 2001, the Contractors Licensing Board for the State of Arkansas, arbitrarily

and capriciously fined Tony Goodguy nine thousand four hundred sixty dollars and eighty

cents ($9,460.80). The putative judgment was under color of Arkansas Code Sections 17-25-

103, 17-25-408, and 17-25-404.

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3. The Arkansas Contractors Licensing Board violated Tony Goodguy’s rights by

interfering with Tony Goodguy’s right to work. The Arkansas Contractors Licensing Board

failed to show a logical connection between its ordanances and purposes. No evidence was

shown that Tony Goodguy’s business activity might be injurious to public health, peace or

morals so as to require the Board’s regulation and supervision of Tony Goodguy.

4. The purpose of the Arkansas Licensing Board in regard to Tony Goodguy and others

similarly situated is to raise revenue. The Arkansas Licensing Board’s authority as it was

exercised over Tony Goodguy was an obvious revenue scheme, which violates the rights of

the class of law abiding individuals involved in Tony Goodguy’s vocation.

5. The Arkansas Licensing Board’s power to effect administrative remedies is limited to

enforcement of rules to protect the public peace, order, health, morals, and safety.

6. The Arkansas Licensing Board’s scope as applied to Tony Goodguy and others

similarly situated is in excess of authority as clearly limited by the United States Constitution

and the Constitution of Arkansas. The Board alleges its actions are necessary to protect those

contracting with Tony Goodguy and others similarly situated where the courts are open for

other remedies at law and equity.

7. The right to acquire the means of supporting life by honest labor and skill is an

inherent right of a law abiding citizen. Mr. Goodguy’s avocation does not imply any sinister

influence on the public calling for the Arkansas Licensing Board’s surveillance in the form of

license.

8. This court’s review of those laws cited by the Arkansas Licensing Board will reveal

that the ordinances contain no regulatory qualifier to review Tony Goodyguy for such things

as competency or proficiency. The only qualification appears to be the ability to pay the

annual licensing fee and to obtain the required insurance polices and surety bond.

REMEDY SOUGHT

9. Determination by this court that the record in the Arkansas Contractors Licensing

Board’s action against Tony Goodguy does not show that Tony Goodguy, in the conduct of

business, committed any act that was disorderly, jeopardized anyone’s health, imperiled

anyone’s morals or safety, or was the actor in act found to be incompetent or unreliable,

justly requires setting aside the Arkansas Contractors Licensing Board’s fine, compensating

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Tony Goodguy for the cost of bringing this action, and other compensation to Tony Goodguy

as this court finds reasonable and lawful.

Prepared and submitted by: __________________________________ Tony Goodguy

A great case on the subject = Priddy

1994 OK CR 63 882 P.2d 81

CHRISTOPHER A. PRIDDY, APPELLANT, v. THE CITY OF TULSA, OKLAHOMA, A MUNICIPAL CORPORATION, APPELLEE

Case No. M 93-1263. September 26, 1994

Appeal from the Municipal Court, City of Tulsa, William J. Hiddle.

ACCELERATED DOCKET ORDER

¶1 Appellant was convicted July 13, 1993, in the Municipal Court of the City of Tulsa, Case No. 9464157, of No License to Engage in Business as a Sign Contractor. The Honorable William J. Hiddle fined Appellant $300.00 plus costs. From this Judgment and Sentence, Appellant, pro se, appeals.

¶2 The propositions of error raised by Appellant on appeal are:

1. The [Appellant] was arraigned on the initial Information, in citation form, on the charge that the Appellant committed the crime of having "No Permit For Work Performed" — Title 51 — Tulsa Building Code, § 2901.5. Appellee's motion to amend the original Information, after arraignment, was a substantive one, charging a crime not previously pleaded to in the original Information. The amended charge accuses the Appellant of committing the offense of having "No License to Engage in Business as a Sign Contractor" — Title 51 — Tulsa Building Code, § 2906.1. The Trial Court erred in allowing the amendment without requiring or allowing arraignment on the subsequent charge in violation of Article 2, § 20 [2-20] of the Oklahoma State Constitution and Title 22, § 304 [22-304] of the Oklahoma Statutes.

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2. The Tulsa Municipal Building Code, pertaining to licensure of sign painters, promulgated under the guise of regulatory law, and admittedly not as a taxing ordinance for the purpose of raising revenue, as adopted, is overly broad, vague, and monetarily intrusive, and as Appellant demonstrated at trial, does not fulfill the intended purpose, namely, to insure the health, safety, and welfare of the general public. As such, the ordinance is an obvious revenue scheme, which violates the rights of the class of law abiding individuals involved in the vocation of lettering preexisting and previously city permitted sign structures, and the costs involved in maintaining the enforcement of the combined regulatory and licensing schemes exceed what is required to facilitate compliance.

3. The Appellee's assertion at trial that the City's sign ordinance has a legitimate purpose in insuring some arbitrary and undefined aesthetic function is a nullity, and the court erred in determining that such a function is a legitimate one for purposes of licensing individuals who merely letter privately owned signs, notwithstanding fact that the ordinance imposes no standard or guide for its enforcement, and gives uncontrolled discretion to the enforcing officials, and the court erred in not allowing Appellant to prove lack of standards and uncontrolled enforcement.

¶3 Pursuant to 22 O.S.Supp. 1993, Ch. 18, App., Rules of the Court of Criminal Appeals, Rule 11.2, this appeal was automatically assigned to the Accelerated Docket of this Court. The propositions or issues were presented to this Court in oral argument August 18, 1994, pursuant to Rule 11.5(c). At the conclusion of oral argument, the parties were advised of the decision of this Court.

¶4 We agree with Appellant that the City Ordinance under which he was convicted, Sections 2906.1 of Title 51, as it applies to sign painters, is unconstitutional. Further, we find Section 201.0 as it applies to sign painters is unconstitutional; and Section 2901.5, insofar as it requires a license for sign painters in addition to a permit is unconstitutional.

Section 2906.1: "License. No person, firm, or corporation shall be issued a permit or engage or offer to engage in, by advertisement or otherwise, a business as a sign contractor until such person, firm or corporation has secured a license and has paid an annual fee of One Hundred Fifty Dollars ($150.00) therefor, has provided evidence of insurance and has posted the bond as required herein."

Section 201.0: ". . . Sign Contractor: Any person, firm or corporation engaged in the business of manufacturing, assembling, transporting, installing, erecting, repairing, painting, altering, servicing, or removing signs as herein defined, and maintaining permanent business address or telephone."

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Section 2901.5: "Permits Required. No sign shall be erected, altered or relocated without a permit issued by the code official, except as otherwise provided herein. Where electrical permits are required, they shall be obtained at the same time as the sign permit. No permit required for any sign work shall be issued, and no sign for which such permit is required shall be erected unless the person, firm or corporation erecting the same shall have paid the current license fee as herein provided and shall have executed and delivered a bond and insurance as herein provided. . ."

¶5 In addition to the $150.00 annual license fee, a painter of signs in the City of Tulsa is required to have a $25,000 public liability and property damage insurance policy, a $50,000 personal injury and death insurance policy, a $5,000 property damage insurance policy, and a $2,000 surety bond. See Sections 2906.2 and 2906.3 of Title 51. The requirements for a license with an annual fee and the insurance policies and surety bond are in addition to the requirement for a permit and a $25,000 removal bond. See Sections 2901.5 and 2906.2.1.

¶6 Title 11 O.S. 1991, § 22-107 [11-22-107] allows a municipality to establish license requirements as it deems appropriate in the exercise of its police power. Therefore, the City of Tulsa has the power to enact and enforce ordinances to protect the public peace, order, health, morals, and safety of its inhabitants. However, to sustain encroachment on an individual's liberty, there must be an obvious and real connection between the ordinance and its purpose to protect the public welfare and this purpose can be served in no less restrictive means. See Cryan v. State, 583 P.2d 1122 (Okl.Cr. 1978).

¶7 The City of Tulsa could not justify to this Court how the public welfare of the City of Tulsa was enhanced by requiring both a license and a permit.

¶8 A license gives to the licensee a special privilege not accorded to others and which the licensee otherwise would not enjoy. Once a power to license exists, certain acts become illegal for all who have not been licensed. See 51 Am Jur 2d § 1; 53 C.J.S. § 2(a).

¶9 In State v. Wiggenjost, 130 Neb. 450, 265 N.W. 422 (1936), the Supreme Court of Nebraska found the license feature of a sign ordinance, which was required in addition to a permit, not enforceable. We agree with the Nebraska Supreme Court that the right to acquire the means of supporting life by honest labor and skill is an inherent right of a law abiding citizen. Further, we agree that the vocation of painting signs does not imply any sinister influence on the public calling for municipal surveillance in the form of a license.

¶10 We can understand the desirability of each municipality requiring a permit before a sign is authorized. However, if each municipality requires a permit for each sign and then requires the sign painter to also be licensed to paint signs within that municipality, the ability of a sign painter to practice his trade will be gravely restricted. We find it would be highly unreasonable and overly burdensome for a sign painter to be required to be licensed in each municipality in which the sign painter might find work.

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¶11 We also note that Tulsa's ordinance appears to apply to stable, established sign painters who have a permanent business address and telephone, but does not appear to apply to itinerant sign painters.

¶12 Further, the City of Tulsa's requirement of a license to paint signs contains no regulatory qualifier to review for such things as competency or proficiency. The only qualification appears to be the ability to pay the annual fee and to obtain the required insurance policies and surety bond. When all persons engaged in the business of sign painting, without qualification, may obtain a license upon payment of the stipulated sum to do business, subject to no prescribed rule of conduct, the presumption is strong that the power of taxation and not the police power is being exercised. See Ex parte Davis, 72 Okla. Crim. 152, 114 P.2d 186 (1941).

¶13 The City of Tulsa may not interfere with a person's right to work where there is no logical connection between its ordinance and its purpose to protect the safety of its citizens. No evidence was shown that "sign painting" might be injurious to public health, peace or morals so as to require regulating and supervision.

¶14 IT IS THEREFORE THE ORDER OF THIS COURT, by a four (4) to zero (0) vote, the judgment and sentence is REVERSED and REMANDED to the Municipal Court of the City of Tulsa with instructions to dismiss. Further, the Court finds the city ordinances, Sections 2906.1, 201.0, and 2901.5 of Title 51, as they apply to sign painters, are unconstitutional. We want to emphasize that the findings in this order are narrowly limited to "sign painting," not the aesthetics of the sign, or erecting or removing a sign, etc.

¶15 IT IS SO ORDERED.

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Appeal No. 02-00733

IN THE SUPRME COURT OF ARKANSAS

Tony Goodguy

Plaintiff / Appellant

v.

Arkansas Contractors Licensing Board

Defendant / Appellee

APPEAL IN CAUSE NO. CIV-2001-206

IN THE CIRCUIT COURT

OF PHILLIPS COUNTY, ARKANSAS

THE HONORABLE HARVEY YATES PRESIDING

APPELLANT’S OPENING BRIEF

Tony Goodguy P. O. Box 354 Elaine, Arkansas 72333

(870)-827-6879

94

TABLE OF CONTENTS

Informational statement and jurisdictional statement . . . . 3

Appellant’s point on appeal. . . . . . . . 3

Table of authorities . . . . . . . . 3, 4

Abstract . . . . . . . . . 4, 5

Statement of the case . . . . . . . . 5

Statement of facts presented by appellant. . . . . . 6

Argument . . . . . . . . . 6, 7

Certificate of service . . . . . . . . 7

Addendum . . . . . . . . . 8

Informational statement and jurisdictional statement

1. This appeal is taken from the circuit court’s decision to merely reduce rather

than vacate a fine applied administratively by the Arkansas Contractors Licensing Board.

The Supreme Court of Arkansas has jurisdiction to consider the issue raised in this appeal

under authority of the Arkansas Court Rules, Rule 1-2(a) in as much as Tony Goodguy

questions the Arkansas Licensing Board’s constitutional authority to require Tony

Goodguy to have a license where no issue of public health, public safety, or public

morality is raised.

2. I express a belief, based on a reasoned and studied professional judgment, that

this appeal raises the following questions of legal significance for jurisdictional purposes:

Does the interference of the Arkansas Licensing Board violate Articles of the Arkansas

Constitution, including Article 2, Sections 2 and 29? The issues raised by Tony Goodguy

95

apparently are of first impression to the Arkansas Supreme Court as no Arkansas

authority directly on point was found to be extant.

Appellant’s point on Appeal

3. The administrative action taken by the Arkansas Licensing Board to fine Tony

Goodguy is an obvious revenue scheme that, for want of showing an issue of public

safety, public morality, or public morals, violates Tony Goodguy’s constitutional right to

work.

Table of Authorities

THE CONSTITUTION OF ARKANSAS

Article 2, Section 2 . . . . . . . . 3

Article 2, Section 29 . . . . . . . . 3

THE UNITED STATES SUPREME COURT

NEW YORK STATE v. ROBERTS. (10/31/1898) 171 U.S. 658, 43 L.Ed. 323, 19 S.Ct. 58. . . . . . . . 7 Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 122 S.Ct. 2080 (U.S. 06/17/2002). . . . . . 7

PURSUASIVE AUTHORITES

Cryan v. State, 583 P.2d 1122 (Okl.Cr. 1978) . . . . 7

Ex parte Davis, 72 Okla. Crim. 152, 114 P.2d 186 (1941) . . . 7

Priddy v. City of Tulsa, 882 P.2d 81, (Okl. 1994). . . . . 5, 7

State v. Wiggenjost, 130 Neb. 450, 265 N.W. 422 (1936) . . . 7

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STATUTES AND RULES

Arkansas Code Section 17-25-103 . . . . . . 4, 5

Arkansas Code Section 17-25-404 . . . . . . 5

Arkansas Code Section 17-25-408 . . . . . . 5

Arkansas Code Section 25-15-2 . . . . . . 5

TREATISES

51 Am Jur 2d, Section 1 . . . . . . . 7

53 C.J.S. Section 2(a) . . . . . . . . 7

Abstract

4. Citing Arkansas code section 17-25-103, representatives of the Arkansas

Licensing Board conducted an ex parte administrative hearing with the result being a

substantial fine applied to Tony Goodguy for not having a license to be in the business of

sign building. Tony Goodguy brought suit in the circuit court of Phillips County

challenging the constitutionality of applying Arkansas code section 17-25-103 where

there was no issue of public health, public safety, or public morality. Tony Goodguy

relied on Priddy v. City of Tulsa, 882 P.2d 81 (Okl. 1994) as a persuasive authority. Tony

Goodguy sought the court’s ruling that Arkansas code section 17-25-103 is an

unconstitutional revenue scheme intended to interfere with those who are similarly

situated’s right to work. The court below ruled that Tony Goodguy could not raise a

constitutional question in a judicial review where Tony Goodguy had not raised the issue

during the administrative hearing. Construing law to absurdity, the court below did rule

that the fine applied to Tony Goodguy by the Arkansas Licensing Board was an

unconstitutionally excessive fine and reduced the fine by half. This court shall notice

Arkansas Licensing Board’s so called “FINDINGS OF FACT, CONCLUSIONS OF

LAW, AND ORDER” dated June 8th, 2001, and order signed by Harvey Yates, item “7.”

Responsibility now rests with the Supreme Court of Arkansas to rule and determine

whether the Arkansas Licensing Board has constitutional authority to compel those who

97

are working in areas not affecting public health, public morality, or public safety to pay a

special un-apportioned tax to the State of Arkansas in the form of licensing fees.

Statement of the case

5. Circa July 16, 2001, Tony Goodguy was noticed by the Administrator for the

Contractors Licensing Board for the State of Arkansas that the Board had fined Mr.

Goodguy nine thousand four hundred sixty dollars and eighty cents ($9,460.80). The

putative judgment was under color of Arkansas Code Sections 17-25-103, 17-25-408, and

17-25-404. On review under authority of Arkansas Code Section 25-15-2, the circuit

court for Phillips County issued a contradictory ruling that Tony Goodguy could not raise

a constitutional issue under 25-15-2 which had not been raised in the administrative

hearing which Tony Goodguy sought judicial review of. Apparently converting the

judicial review from a court of law to a court of equity, the court sua sponte reduced the

fine by half, citing violation of the CONSTITUTIONAL prohibition on excessive fines.

Statement of facts presented by appellant

6. No evidence was shown that Tony Goodguy’s business activity might be

injurious to public health, peace or morals so as to require the Board’s regulation and

supervision of Tony Goodguy. The only of record purpose of the Arkansas Licensing

Board in regard to Tony Goodguy and others similarly situated is to raise revenue. The

Arkansas Licensing Board’s authority as it was exercised over Tony Goodguy was an

obvious revenue scheme. The Board alleged its actions were necessary to protect those

contracting with Tony Goodguy and others similarly situated where the courts are open

for other remedies at law and equity. Mr. Goodguy’s avocation does not imply any

sinister influence on the public calling for the Arkansas Licensing Board’s surveillance in

the form of license. The Arkansas Licensing Board’s ordinances contain no regulatory

qualifier to review Tony Goodguy for such things as competency or proficiency. The

only qualification appears to be the ability to pay the annual licensing fee and to obtain

the required insurance polices and surety bond. Tony Goodguy is not engaged in

interstate commerce.

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Argument

7. The Arkansas Contractors Licensing Board violated Tony Goodguy’s rights by

interfering with Tony Goodguy’s right to work. The Arkansas Contractors Licensing

Board failed to show a logical connection between its ordinances and purposes. No

evidence was shown that Tony Goodguy’s business activity might be injurious to public

health, peace or morals so as to require the Board’s regulation and supervision of Tony

Goodguy. The purpose of the Arkansas Licensing Board in regard to Tony Goodguy and

others similarly situated is to raise revenue. The Arkansas Licensing Board’s authority as

it was exercised over Tony Goodguy was an obvious revenue scheme, which violates the

rights of the class of law abiding individuals involved in Tony Goodguy’s vocation. The

Arkansas Licensing Board’s power to effect administrative remedies is limited to

enforcement of rules to protect the public peace, order, health, morals, and safety. The

Arkansas Licensing Board’s scope as applied to Tony Goodguy and others similarly

situated is in excess of authority as clearly limited by the United States Constitution and

the Constitution of Arkansas. The Board alleges its actions are necessary to protect those

contracting with Tony Goodguy and others similarly situated where the courts are open

for other remedies at law and equity. The right to acquire the means of supporting life by

honest labor and skill is an inherent right of a law-abiding citizen. Mr. Goodguy’s

avocation does not imply any sinister influence on the public calling for the Arkansas

Licensing Board’s surveillance in the form of license. This Supreme Court’s review of

those laws cited by the Arkansas Licensing Board will reveal that the ordinances contain

no regulatory qualifier to review Tony Goodguy for such things as competency or

proficiency. The only qualification appears to be the ability to pay the annual licensing

fee and to obtain the required insurance polices and surety bond. Tony Goodguy, in the

conduct of business, committed no act that was disorderly, jeopardized anyone’s health,

imperiled anyone’s morals or safety, or was the actor in act found to be incompetent or

unreliable.

8. Even when issues of public morality and public safety are present, these issues

do not necessarily trump a constitutional right. Watchtower Bible and Tract Society of

New York, Inc. v. Village of Stratton, 122 S.Ct. 2080 (U.S. 06/17/2002). Tony Goodguy

does not engage in interstate commerce, a requisite prong for taxation in the form of

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licensing. For discussion, see NEW YORK STATE v. ROBERTS, (10/31/1898) 171 U.S.

658, 43 L.Ed. 323, 19 S.Ct. 58. Other discussions found at Cryan v. State, 583 P.2d 1122

(Okl.Cr. 1978), 51 Am Jur 2d, Section 1; 53 C.J.S. Section 2(a), State v. Wiggenjost, 130

Neb. 450, 265 N.W. 422 (1936), Ex parte Davis, 72 Okla. Crim. 152, 114 P.2d 186

(1941); all referenced in Priddy v. City of Tulsa, 882 P.2d 81, (Okl. 1994).

Prepared and submitted by: _____________________

Tony Goodguy

CERTIFICATE OF SERVICE

I, Tony Goodguy, certify, that on August ______, 2002, I mailed a true and

correct copy of the above and foregoing appellant’s opening brief via first class mail to:

Boy George 621 East Capital Little Rock, Arkansas 72202 ______________________ Tony Goodguy

Addendum

Determinations of the Arkansas Licensing Board . . . . A

Tony Goodguy’s original petition for judicial review . . . B

Priddy v. City of Tulsa . . . . . . . C

Ruling of the circuit court . . . . . . . D

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SECTION SEVEN: Civil rights actions Workbook assignment: In the following complaint for malicious prosecution, underline the elements of proof necessary to establish a cause of action for malicious prosecution. Why have individuals been named instead of municipalities? ________________________________________________________________________________________________________________________________________________ What is the difference between malicious prosecution and abuse of process? ________________________________________________________________________________________________________________________________________________ In the following suit underline the elements of proof required to make the case.

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

Dwayne Citizen, ) ) Plaintiff, ) ) v. )

) Rick Spudd, an individual, ) Jerry Bink, an individual, ) Carlotta Flem, an individual, ) Margaret Terb, an individual, ) Tom Slur, an individual, ) Karen Carden Dree, an individual, ) Joe L. Lapp, an individual, ) and ) Curtis Crut, an individual, ) ) Defendants. ) ____________________________________)

PETITION AND COMPLAINT IN THE NATURE OF A SUIT FOR DEPRIVATION OF FEDERALLY PROTECTED RIGHTS 42 USC 1983

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1. Dwayne Citizen, aggrieved party, petitions this court under authority of 42

USC 1983 for deprivation of federally protected rights inter alia the Fifth and Fourteenth

Amendments of The United States Constitution. Rick Spudd, Jerry Bink, Carlotta Flem,

Margaret Terb, Tom Slur, Karen Carden Dree, Joe L. Lapp, and Curtis Crut, hereinafter

Spudd, et al., with malice and aforethought, conspired, under color of law, to deprive

Dwayne Citizen of liberty and property without due process of law.

2. Beginning about March of 1999, Spudd, et al., conspired to prosecute and did

prosecute Dwayne Citizen in criminal proceedings identified as CF-99-888, Washington

County, Oklahoma. These “color of law” proceedings were terminated in favor of

Dwayne Citizen. No probable cause was established on record: the putative probable

causes were vitiated by disclosure of instruments which Spudd, et al., had knowledge of

which vindicated Dwayne Citizen after their disclosure and after Carlotta Flem, under

oath and testifying in open court, lacked the cunning to perpetrate the fraud which she

had machinated with Jerry Bink, Margaret Terb, Tom Slur, Curtis Crut, Joe L. Lapp, and

Rick Spudd. Records and testimony will verify that Flem, Bink, Terb, Slur, Lapp, Crut,

and Spudd were motivated by purposes other than bringing an offender to justice. In the

context of the disclosures which follow, a jury shall determine that the conspired to acts

of Flem, Bink, Terb, Slur, Lapp, Crut, Dree, and Spudd were malice res ipsa loquitur.

3. Carlotta Flem’s role in the malicious prosecution was an attempt to extort

money from Delmer Citizen by convincing a jury that Dwayne Citizen had uttered false

instruments moving property from Carlotta Flem to Delmer Citizen. The record made in

CF-99-888, Washington County, Oklahoma, verifies that Carlotta Flem knew this

assertion was false. Had Dwayne Citizen been convicted on false testimony, Carlotta

Flem would have received a sum reasonably in excess of fifty thousand dollars and

perhaps as much as one hundred fifty thousand dollars.

4. Jerry Bink wrote a title opinion for Ruth Citizen on property which was the res

of the alleged crime in CF-99-888, Washington County, Oklahoma, then in direct

contradiction to his purported legal opinion, Mr. Bink sued Delmer Citizen on behalf of

Margaret Terb, sister-in-law of Dwayne Citizen. Ruth Citizen filed a complaint about the

conflict of interest reflecting poorly on the reputation of Jerry Bink. Jerry Bink, with

others named in this suit, machinated the fraud that Dwayne Citizen had transferred

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property to Delmer Citizen which belonged to Carlotta Flem. Jerry Bink gained

financially from fees paid Jerry Bink in a suit that contradicted his own legal opinion.

Jerry Bink sought to benefit from the malicious prosecution of Dwayne Citizen by getting

revenge for casting asperity on the character and professional competence of Jerry Bink.

5. Margaret Terb conspired with Jerry Bink and Carlotta Flem to defraud Ruth

Citizen and Delmer Citizen of property they had purchased from Margaret Terb. Terb,

Bink, and Flem conspired to have Dwayne Citizen prosecuted with a resulting

determination that the property which belonged to Ruth Citizen and Delmer Citizen was

actually Carlotta Flem’s through marital estate. Terb, Bink, and Flem knew that Dwayne

Citizen had gone to Colorado to investigate property there. The next day, Carlotta Flem,

then Carlotta Citizen, filed for divorce. Terb, Bink, and Flem attempted to miscast deeds

of title which were rightfully Ruth Citizen’s to a consortium which dealt with Carlotta

Flem. The scam was foiled by the conscientious observations of Dwayne Citizen,

necessitating Terb, Bink, and Flem “covering their asses” by maliciously prosecuting

Dwayne Citizen. Margaret Terb benefited by the property transaction and would have

benefited at least vicariously if not financially if her sister, Carlotta Flem, and she

succeeded in the scam.

6. Tom Slur was and is a law partner with Jerry Bink and was and is the assistant

district attorney of Washington County, Oklahoma. Tom Slur knew that any action to

prosecute Dwayne Citizen would necessarily need to show a victim of a crime. Since

Delmer Citizen was obviously not victimized by Dwayne Citizen’s actions, and even if

cast so by Tom Slur would not have abetted the fraud Terb, Maddox, and Flem were

attempting to perpetrate, Slur’s assistance in machinating the fraud that property

belonging to Delmar Citizen actually belonged in the marital estate benefiting Carlotta

Flem was required. Reasonably and logically, since Jerry Bink and Tom Slur are business

partners, the scam benefited Tom Slur either directly or indirectly.

7. Curtis Crut assisted others named, including Margaret Terb, Jerry Bink, and

Tom Slur, by acting as a liaison between parities guilty of crimes and investigative and

law enforcement authorities. In other words, Curtis Crut was useful for a cover-up.

Reasonably and logically, Curtis Crut’s motive was quid pro quo.

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8. Rick Spudd, in prosecuting Dwayne Citizen, was carrying out a vendetta

against Dwayne Citizen. Rick Spudd had literally rustled cattle belonging to Dwayne

Citizen circa 1983. Mr. Spudd, then a private practitioner, prosecuted a foreclosure on a

neighbor of Dwayne Citizen’s where cattle belonging to Dwayne Citizen were grazing.

Rick Spudd knew or should have known that the cattle were actually Dwayne Citizen’s.

Court records show that Rick Spudd has exhibited a pattern of using process to punish

Dwayne Citizen for foiling Rick Spudd’s original rustling of cattle.

9. Karen Carden Dree, acting as bankruptcy trustee in case no. 98-03653-R,

Northern District of Oklahoma, is still pressing a claim that Carlotta Flem is entitled to

property rightfully owned by Delmer Citizen. Karen Carden Dree is acting under mere

color of law, because Karen Carden Dree knows of the outcome of the “trial” of Dwayne

Citizen and knows the claims of Carlotta Flem were confessed as fraud, has a copy of the

contract for Dwayne Citizen to act as Ruth Citizen’s agent, and has a copy of the

cancelled check of Ruth Citizen’s making. Karen Carden Dree and / or law partners of

Karen Carden Dree wrote the title opinion on the property sold by Delmer Citizen to fund

the purchase of Colorado property Dwayne Citizen was sent to investigate. See article 5

of these pleadings. Records suggest that Karen Carden Dree either knew or should have

known of the nefarious plans of Bink, Terb, and Flem. Regardless, Karen Carden Dree

now knows but still asserts a claim which she knows is false.

10. Joe L. Lapp was Carlotta Flem’s divorce attorney. His role in the conspiracy

was to falsely represent to the court that Carlotta Flem’s marital estate should include

property belonging to Delmer Citizen. Joe L. Lapp’s fee from Carlotta Flem was

contingent on Carlotta Flem perpetrating the fraud that property belonging to Delmar

Citizen belonged in the marital estate of Carlotta Flem.

11. As no reasonable theory of apportionment arises, the defendants should be

considered jointly and severally liable.

12. A jury’s determination that Dwayne Citizen was deprived of federally

protected rights caused by any or all of the defendants warrants a jury’s determination of

damages together with the costs of bringing this action.

13. Determination by the court that any of the defendants conspired to commit

fraud warrants remand to other authority for inquiry into criminal charges.

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14. A jury’s determination that any or all of the defendants’ acts were scandalous,

outrageous and an affront to public policy justly requires punitive and exemplary

damages sufficient so as to be instructional to parties found guilty to effect correction of

their bad behavior.

JURY TRIAL DEMANDED Prepared and submitted by: _____________________________

Dwayne Citizen Route 2, Box 1481 River City, Oklahoma 74000

(918) 555-1212

AFFIDAVIT OF

I, Dwayne Citizen, of lawful age and competent to testify, after having

been duly sworn, state as follows:

1. About 1983, Rick Spudd took my cattle without authorization or judicial

determination. Before the matter of Rick Spudd’s theft of my cattle was

resolved, Rick Spudd conspired with others to force me to submit to a body

search in which I was forced to undress. In connection with this same

occurrence, Rick Spudd influenced a judge to file “bail jumping” charges

against me where records show that I was neither under indictment nor on

trial.

2. I was prosecuted by Rick Spudd in 1999. I was acquitted.

3. Had Rick Spudd’s 1999 prosecution of me been successful, Carlotta Flem and

others who conspired with her would have gotten away with fraud.

4. As a result of the prosecution which ended in my acquittal, I have been

damaged financially, socially, and emotionally.

___________________________

Dwayne Citizen

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STATE OF OKLAHOMA INDIVIDUAL ACKNOWLEDGMENT

COUNTY OF WASHINGTON Oklahoma Form

Before me, the undersigned, a Notary Public in and for said County and State on

this ____ day of ________, 2003, personally appeared __________________________,

to me known to be the identical person who executed the within and foregoing instrument

and acknowledged to me that he executed the same as his free and voluntary act.

Given under my hand and seal the day and year last above written.

My commission expires __________

________________________ Notary Public

Are judges immune from civil suit?

“Absolute judicial immunity” – fact or fiction?

It is rare to observe or even hear of a competent, honest judge showing fidelity

to oath and judicial canon. Most judges that I have knowledge of are arrogant, ignorant,

dishonest, lazy, stupid, and mean. Why is this? The main reason is a near total lack of

accountability. After a housecleaning of dishonest judges in the Oklahoma Supreme

Court in 1967, the Oklahoma Legislature created a council on judicial complaints to hear

complaints about bad judges. In its thirty-six years of existence, the Council has

disciplined only six judges, or one about every six years. Anybody who believes that only

six valid complaints have been filed against Oklahoma judges in the past thirty-six years

needs to be aware of Brooklyn bridge salesmen! Do we have a recourse against bad

judges? We sure do – sue the judge in federal district court under 42 USC 1983 for

deprivation of federal protected rights. Ninety-nine point nine percent of so-called

“licensed bar associates” will tell you, “can’t sue a judge – they’re immune” – Bull

Durham!!!! To understand how to sue a judge, let’s begin with judges’ authority. Judges

of limited, inferior, or even general courts don’t have the protection of immunity from

suit for acts not within their judicial capacity. But what defines judicial capacity? First, to

be a judge as distinguished from somebody wearing a black robe being called “judge,”

106

the judge must be of oath and in some states post a bond as well. All public officers must

take an oath before each term of service - 5 USC Sec. 3331 TITLE 5 - GOVERNMENT

ORGANIZATION AND EMPLOYEES PART III – EMPLOYEES Subpart B -

Employment and Retention CHAPTER 33 - EXAMINATION, SELECTION, AND

PLACEMENT SUBCHAPTER II - OATH OF OFFICE Sec. 3331. Oath of office –

STATUTE - An individual, except the President, elected or appointed to an office of

honor or profit in the civil service or uniformed services, shall take the following oath: ''I,

AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the

United States against all enemies, foreign and domestic; that I will bear true faith and

allegiance to the same; that I take this obligation freely, without any mental reservation or

purpose of evasion; and that I will well and faithfully discharge the duties of the office on

which I am about to enter. So help me God.'' This section does not affect other oaths

required by law. The required oaths for federal judges is as follows: 28 USC Sec. 453

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE PART I - ORGANIZATION

OF COURTS CHAPTER 21 - GENERAL PROVISIONS APPLICABLE TO COURTS

AND JUDGES Sec. 453. Oaths of justices and judges. Each justice or judge of the

United States shall take the following oath or affirmation before performing the duties of

this office: ''I, _ _ _ _ _ _, do solemnly swear (or affirm) that I will administer justice

without respect to persons, and do equal right to the poor and to the rich, and that I will

faithfully and impartially discharge and perform all the duties incumbent upon me as _ _

_ _ _ under the Constitution and laws of the United States. So help me God.'' In

Oklahoma, Title 21, Crimes and Punishments, Chapter 6, Section 261, makes it a crime

to serve without oath. “Acceptance of Public Office Without Oath or Security-Penalty.

Every person who executes any of the functions of a public office without having taken

and duly filed the required oath of office, or without having executed and duly filed the

required security, is guilty of a misdemeanor, and in addition to the punishment

prescribed therefore, he forfeits his right to the office. In Texas, a judge must take and

file two oaths, one for upholding Constitutions, the other an anti-bribery oath. The Texas

oaths must be filed before every term of office, even temporary or visiting judges. Texas

judge’s failure to take and file the oaths with the secretary of state deprives the judge of

jurisdiction and everything the “judge” does is void. See Prieto Bail Bonds v. State of

107

Texas, 994 S.W. 2d 316, 1999 (Tex). A judge’s defined behavior doesn’t stop with the

oath. Judges also are amenable to rules specified by Congress and the Legislatures known

as judicial canon. The Code of Conduct For United States Judges includes requirements

that a judge should respect and comply with the law and should act at all times in a

manner that promotes public confidence in the integrity and impartiality of the judiciary,

should not allow family, social, or other relationships to influence judicial conduct or

judgment, should maintain professional competence in the law and should not be swayed

by partisan interests, public clamor, or fear of criticism, should be patient, dignified,

respectful, and courteous to litigants, jurors, witnesses, lawyers, and others the judge

deals with in an official capacity, should accord to every person who is legally interested

in a proceeding full right to be heard according to law and neither initiate nor consider ex

parte communications. A judge should dispose promptly of the business of the court. A

judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality

might reasonably be questioned including cases where the judge has a personal bias or

prejudice concerning a party. To sum it up, a judge should avoid any appearance of

impropriety. This doesn’t sound like the judges I know! So what do we do about bad

judges? We sue them! But aren’t they immune? Don’t they have absolute immunity?

The key is whether the act is a judicial act. And what best defines what a “judicial act”

is? Our favorite subject - subject matter jurisdiction. And what deprives a court of subject

matter jurisdiction? How about fraud? How about denial of due process? How about lack

of statutory or common law authority to render a ruling? How about lack of a competent

fact witness? How about, no oath on file? How about violation of a Constitutional Right?

Authorities

The United States Supreme Court has long recognized that judicial immunity does

not protect judicial officers when the relief sought is injunctive and declaratory. Pulliam

v. Allen, 466 U.S. 522, 1970. HEADS UP – Congress has revised the law - In any action

brought against a judicial officer for an act or omission taken in such officer's judicial

capacity, injunctive relief shall not be granted unless a declaratory decree was violated or

declaratory relief was unavailable. Applying the “clear absence of all jurisdiction”

standard to judges of courts of limited jurisdiction (such as federal district courts)

comports with the policy expressed in Bradley that where a court has subject matter

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jurisdiction over a particular controversy, the judge should be absolutely immune from a

damages action stemming from his decision. A judge’s private, prior agreement to

decide in favor of one party is not a judicial act. Although a party conniving with a judge

to predetermine the outcome of a judicial proceeding may deal with him in his “judicial

capacity,” the other party’s expectation of judicial impartiality is actively frustrated by

the scheme. It is the antithesis of the “principled and fearless decision-making” that

judicial immunity exists to protect. Rankin v. Howard, 633 F.2d 844 (9th Cir. 1980)

certiorari denied, 451 U.S. 939, 101 S.Ct. 2020 (1981), Pierson v. Ray, 386 U.S. 547,

554, 87 S.Ct. 1213 (1967), and Gregory v. Thompson, 500 F.2d 59 (9th Cir. 1974). It is

clear that a judge who acts in the absense of subject matter jurisdiction may be held liable

for his judicial acts, Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099 (1978), Bradley v.

Fisher, 80 U.S. 335 (1872). Where an individual official would be expected to know that

certain conduct would violate statutory or constitutional rights, he should be made to

hesitate, Harlow v. Fitzgerald, 102 S.Ct. at 2739, and Scott v. Dixon, 720 F.2d 1542 (11th

Cir. 1983). Where judge presumes to exercise jurisdiction beyond understood boundaries,

judge is not entitled to immunity, Dykes v. Housemann, 743 F.2d 1488 (11th Cir. 1984).

A judge’s private, prior agreement to decide in favor of one party is not a judicial act,

Lopez v. Vanderwater, 620 F.2d 1229 (7th Cir. 1980). If a court lacks jurisdiction over a

party, then it lacks “all jurisdiction” to adjudicate that party’s rights, whether or not the

subject matter is properly before it, Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690

(1978). Ex parte proceeding would be a flagrant violation of due process, rendering any

order null and void, In re: Wellman, 3 Kan.App. 100, 45 P. 726 (1896). When want of

jurisdiction is known to the judge, no excuse is permissible, Turner v. Raynes, 611 F.2d

92 (5th Cir. 1980). “Willful misconduct in office or willful and persistent failure to

perform his official duties by a judge of the United States shall constitute conduct

inconsistent with the good behavior required by article III of the Constitution and shall be

cause for the removal of that judge." When judges act when they do not have jurisdiction

to act, or they enforce a void order (an order issued by a judge without jurisdiction), they

become trespassers of the law, and are engaged in treason (see below). The Court in

Yates v. Village of Hoffman Estates, Illinois, 209 F. Supp. 757 (N.D. Ill. 1962) held that

"not every action by a judge is in exercise of his judicial function . . . it is not a judicial

109

function for a judge to commit an intentional tort even though the tort occurs in the

courthouse." When a judge acts as a trespasser of the law, when a judge does not follow

the law, the judge loses subject-matter jurisdiction and the judge’s orders are void, of no

legal force or effect. The U.S. Supreme Court in Scheuer v. Rhodes, 416 U.S. 232, 94

S.Ct. 1683, 1687 (1974), stated that "when a state officer acts under a state law in a

manner violative of the Federal constitution, he "comes into conflict with the superior

authority of that Constitution, and he is in that case stripped of his official or

representative character and is subjected in his person to the consequences of his

individual conduct. The State has no power to impart to him any immunity from

responsibility to the supreme authority of the United States." By law, a judge is a state

officer. The judge then acts not as a judge, but as a private individual (in his person). The

Illinois Supreme Court has held that "if the magistrate has not such jurisdiction, then he

and those who advise and act with him, or execute his process, are trespassers." Von

Kettler, et.al. v. Johnson, 57 Ill. 109 (1870). Under Federal law, which is applicable to

all states, the U.S. Supreme Court stated that if a court is "without authority, its

judgments and orders are regarded as nullities. They are not voidable, but simply void;

and form no bar to a recovery sought, even prior to a reversal in opposition to them. They

constitute no justification; and all persons concerned in executing such judgments or

sentences, are considered, in law, as trespassers." Elliot v. Piersol, 1 Pet. 328, 340, 26

U.S. 328, 340 (1828). The Illinois Supreme Court held that if a court "could not hear the

matter upon the jurisdictional paper presented, its finding that it had the power can add

nothing to its authority, it had no authority to make that finding." The People v. Brewer,

128 Ill. 472, 483 (1928). The judges listed below had no legal authority (jurisdiction) to

hear or rule on certain matters before them. They acted without any jurisdiction. When

judges act when they do not have jurisdiction to act, or they enforce a void order (an

order issued by a judge without jurisdiction), they become trespassers of the law, and are

engaged in treason (see below). The Court in Yates v. Village of Hoffman Estates,

Illinois, 209 F.Supp. 757 (N.D. Ill. 1962) held that "not every action by a judge is in

exercise of his judicial function . . . it is not a judicial function for a judge to commit an

intentional tort even though the tort occurs in the courthouse." When a judge acts as a

110

trespasser of the law, when a judge does not follow the law, the judge loses subject

matter jurisdiction and the judge’s orders are void, of no legal force or effect.

WORKBOOK ASSIGNMENT = Search the Internet and print your own copies of The

Code of Conduct for United States Judges and The Code of Conduct for Judicial

Employees. Performa for a suit for denial of remedy

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

Kenney Kincaid ) and ) Colleen Kincaid, a married couple, ) ) Plaintiffs, ) )

vs. ) No. 02-CV-300-B(M) )

William W. Spinalie, an individual, ) and ) Johnny Butzly, an individual, ) ) Defendants. ) ____________________________________) PLAINTIFFS’ FIRST AMENDED PETITION AND COMPLAINT IN THE NATURE

OF A SUIT FOR DEPRIVATION OF FEDERALLY PROTECTED RIGHTS – 42 USC 1983 / JURISDICTIONAL STATEMENT / VOIR DIRE OF THE COURT /

FEDERAL RULES OF EVIDENCE RULE 201 MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

I. Individuals William W. Spinalie and Johnny Butzly conspired under color of

law to deprive Kenney Kincaid and Colleen Kincaid of federally protected rights clearly

articulated at United States Constitutional Amendments Five and Seven specifically

applying to the private prior agreement and conspiracy of Mr. Spinalie and Mr. Butzly

under authority of United States Constitutional Amendment Fourteen and the common

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law authorities of U. S. v. Price, 383 U.S. 787 (1966), and U.S. v. Guest, 383 U.S. 745

(1966).

II. Mr. Spinalie and Mr. Butzly deprived the Kincaids of their Constitutional right

not to be deprived of property without due process of law and Constitutional right to

petition court for redress. Kenney Kincaid and Colleen Kincaid brought suit to quiet title

to property in Washington County, Oklahoma, by contracting with the State of Oklahoma

through its political subunit, Washington County. Before the Kincaids could have their

day in court, Spinalie and Butzly succeeded in removing the case to a private venue and

subjected the Kincaids to a sham proceeding, which deprived the Kincaids of access to

court, to a just review of their petition in a court of competent jurisdiction. The acts

conspired to and committed by Spinalie and Butzly deprived Kenney Kincaid and

Colleen Kincaid of the fruit of their contract with the state of Oklahoma. The economic

value of the property which the Kincaids were deprived of was not less than two hundred

twenty-five thousand dollars ($225,000). Additionally, Kenney Kincaid and Colleen

Kincaid suffered aggravation, emotional anguish, loss of time away from personal

activities, and inconvenience. The sham proceeding of Spinalie and Butzly was done with

the intent and effect of defrauding Kenney Kincaid and Colleen Kincaid of their rights,

the fruit of their contract with Oklahoma, and to intentionally afflict the Kincaids with

emotional anguish, to inconvenience and aggravate them, and to treat them as something

less than human.

III. The conspired to acts of Spinalie and Butzly injured Kenney Kincaid and

Colleen Kincaid financially, socially, and emotionally. Private individuals Spinalie and

Butzly are blameworthy and fully liable under United States Supreme Court rulings

which illustrate that private individuals are within reach of 42 USC 1983 when acting

under color of law.

Jurisdictional statement

IV. This court has jurisdiction over both the parties to this action as well as the

subject matter: (a) Kenney Kincaid and Colleen Kincaid have filed a paid petition

(complaint); (b) respondents William W. Spinalie and Johnny Butzly are in receipt of

notice and have had opportunity to answer; (c) Kenney Kincaid and Colleen Kincaid

have articulated this court’s authority to act under 42 USC 1983 and the common law

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doctrines established under U. S. v. Price, 383 U.S. 787 (1966); U.S. v. Guest, 383 U.S.

745 (1966); Kohler v. Kline and Kline, Inc., 38 P.3d 257, 2002 OK CIV APP 4

(Okla.App. 09/18/2001); Minnesota Mining & Mfg. Co. v. Smith, 581 P.2d 31, 1978 OK

99 (Okla. 06/27/1978); Hawkins v. Hurst, 467 P.2d 159, 160 (Okl. 1970); Fowler v.

Goldfeder, 418 P.2d 317, 319 (Okl. 1996); Stevens Expert Cleaners & Dyers, Inc. v.

Stevens, 267 P.2d 998, 1000 (Okl. 1954); Stump v. Sparkman, 435 U.S. 349, 98 S.Ct.

1099, 55 L.Ed. 2d 331 (1978); Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 646 (1872);

and Rankin v. Howard, 633 F.2d 844 (9th Cir. 1980), certiorari denied, 451 U.S. 939, 101

S.Ct. 2020, 68 2d 326 (1981); (d) Kenney Kincaid and Colleen Kincaid appear in this

action and testify to their injuries.

Voir dire of the court

V. Kenney Kincaid and Colleen Kincaid request this court verify compliance

with 5 USC 3331. Kenney Kincaid and Colleen Kincaid request this court explain how

material can rise to the level of evidence admissible at trial absent presentment by and

through a competent witness.

VI. Mandatory judicial notice under authority of Federal Rules of Evidence Rule 201

Triable issues of fact

1. December 14, 2001, Kenney Kincaid and Colleen Kincaid filed a petition in

Washington County, Oklahoma, numbered as CJ-2001-659 attached as exhibit “A.” The

petition sought relief of trespass to the Kincaid’s property.

2. February 10, 2002, Johnny Butzly responded to a paper proffered to Mr. Butzly by

William W. Spinalie. Mr. Butzly refused to allow Kenney Kincaid and Colleen Kincaid to

enter court. Mr. Butzly made no effort to reach the merits of the Kincaid’s complaint. Mr.

Butzly remarked that the paper proffered by William W. Spinalie was all he needed to see.

3. February 10, 2002, William W. Spinalie worked a fraud on the court by advancing a

writing which he knew was false with the intent that Johnny Butzly rely on the false writing

to deprive Kenney Kincaid and Colleen Kincaid of property and rights without due process

of law. A copy of Kenney Kincaid and Colleen Kincaid’s response to the false document

proffered by William W. Spinalie is attached as exhibit “B.”

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4. February 10, 2002, Johnny Butzly willfully acceded to the fraudulent document

proffered by William W. Spinalie and acted with intent and result of depriving Kenney

Kincaid and Colleen Kincaid of property without due process of law; and also, Mr. Butzly

deprived the Kincaids of their Constitutional right to petition by depriving Kenney Kincaid

and Colleen Kincaid of access to court. Johnny Butzly undeniably declared his intentions by

his notation on a so-called minute record. See exhibit “C.”

5. William W. Spinalie had a duty to his client to inquire of Johnny Butzly, Butzly’s

instruction as to whether Mr. Butzly would be preparing an order or whether William W.

Spinalie should prepare a “journal entry of judgment.” Spinalie and Butzly must be

considered intelligent, educated and trained in the law, and with many years of experience

knew that the pronouncement of “judgment” by Butzly had to be memorialized within the

term of court. Butzly and Spinalie also knew that memorializing a final order would present

Kenney Kincaid and Colleen Kincaid with right of appeal, wherein honest review would find

the “judgment” facially void.

6. The hostility evident in the paper of William W. Spinalie and the open display of

animus by Johnny Butzly on February 10, 2002, clearly denied the Kincaids remedy. See

exhibit “D.” This court wants authority to determine that citizens must exhaust remedies by

repeatedly subjecting themselves to anger-driven, hate-filled abuse, where records verify

citizens have already been refused right of access to that forum.

7. Many weeks after the non-judicial, extra-legal abuse conspired to and committed by

Spinalie and Butzly, the Kincaids exercised their federally protected right to remedy under 42

USC 1983.

8. The merits of the underlying cases, including the Washington County case, are not at

issue before this court: (1) this court wants subject matter jurisdiction to try any of the

underlying litigation and (2) Kenney Kincaid and Colleen Kincaid, in this amended

complaint, notice this court of two undeniable acts, which taken together illustrate a pattern

of fraud by Spinalie and Butzly: The first predicate act of fraud is articulated in items two,

three, and four of this judicial notice. The second predicate act of fraud was composing a

void order. See exhibit “E.” Together these acts demonstrate the practice of “pigeonholing” –

the evil and deceitful black art of blocking a pro se litigant from going forward on their claim

and preventing them from appealing as well.

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Argument and authority

VII. The plenary power of Oklahoma State district courts must be exercised

within the term of court which is thirty days from the pronouncement of judgment. If the

power of court to render judgment is not invoked within the term of court (thirty days

from the pronouncement of judgment) the court wants subject matter jurisdiction over the

cause excepting limited jurisdiction articulated at Oklahoma Statute Title 12, Sections

1031 & 1038. See Kohler v. Kline and Kline, Inc., 38 P.3d 257, 2002 OK CIV APP 4

(Okla.App. 09/18/2001); Minnesota Mining & Mfg. Co. v. Smith, 581 P.2d 31, 1978 OK

99 (Okla. 06/27/1978); Hawkins v. Hurst, 467 P.2d 159, 160 (Okl. 1970); Fowler v.

Goldfeder, 418 P.2d 317, 319 (Okl. 1996); and Stevens Expert Cleaners & Dyers, Inc. v.

Stevens, 267 P.2d 998, 1000 (Okl. 1954).

VIII. It is clear that a judge who acts in the absence of subject matter jurisdiction

may be held liable for his judicial act. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099,

55 2d 331 (1978), and Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 646 (1872). A

judge’s private, prior agreement to decide in favor of one party is not a judicial act,

Rankin v. Howard, 633 F.2d 844 (9th Cir. 1980), certiorari denied, 451 U.S. 939, 101

S.Ct. 2020, 68 2d 326 (1981). Judge is deprived of immunity where the judge willfully

accedes to fraud. Cite omitted.

REMEDY SOUGHT

IX. Ideals of substantial justice and fair play require that William W. Spinalie and

Johnny Butzly compensate Kenney Kincaid and Colleen Kincaid according to the

standard damages for fraud or six-hundred, seventy-five thousand dollars ($675,000.00).

Since no reasonable theory of apportionment arises, William W. Spinalie and Johnny

Butzly should be held jointly and severally liable.

JURY TRIAL DEMANDED

Prepared and submitted by: ________________________________________________ Kenney Kincaid Colleen Kincaid 706 Fairlane Drive

Boomtown, Oklahoma 74000 918-555-0000

115

AFFIDAVIT

I, Kenney Kincaid, of lawful age and competent to testify, being first duly sworn, upon oath state as follows: 1. February 10, 2002, at an alleged hearing for alleged judicial determination on papers

William W. Spinalie submitted to Johnny Butzly, Mr. Butzly refused to allow me to enter

his court.

2. February 10, 2002, Johnny Butzly refused to allow me to say anything.

3. February 10, 2002, Johnny Butzly stated that the papers proffered by William W.

Spinalie were all he needed to see.

4. February 10, 2002, Johnny Butzly made it perfectly clear to me that my case in

Washington County was, as they say in the vernacular, “dead in the water.”

5. As a result of the actions of William W. Spinalie and Johnny Butzly, I have been

deprived of property without due process of law.

6. As a result of the actions of William W. Spinalie and Johnny Butzly, I have been

deprived of my right to petition government.

7. As a result of the actions of William W. Spinalie and Johnny Butzly, I have been

damaged emotionally.

8. All the bar licensed attorneys whom I know are arrogant, ignorant, dishonest, stupid,

and lazy.

_________________________ Kenney Kincaid

STATE OF OKLAHOMA INDIVIDUAL ACKNOWLEDGMENT

COUNTY OF WASHINGTON

Before me, the undersigned, a Notary Public in and for said County and State on

this ____ day of ________, 2002, personally appeared _________________ to me known

to be the identical person who executed the within and foregoing instrument and

acknowledged to me that he executed the same as his free and voluntary act.

Given under my hand and seal the day and year last above written.

My commission expires __________ ________________________ Notary Public AFFIDAVIT

116

I, Colleen Kincaid, of lawful age and competent to testify, being first duly sworn, upon oath state as follows: 1. February 10, 2002, at an alleged hearing for alleged judicial determination on papers

William W. Spinalie submitted to Johnny Butzly, Mr. Butzly refused to allow me to enter

his court.

2. February 10, 2002, Johnny Butzly refused to allow me to say anything.

3. February 10, 2002, Johnny Butzly stated that the papers proffered by William W.

Spinalie were all he needed to see.

4. February 10, 2002, Johnny Butzly made it perfectly clear to me that my case in

Washington County was, as they say in the vernacular, “dead in the water.”

5. As a result of the actions of William W. Spinalie and Johnny Butzly, I have been

deprived of property without due process of law.

6. As a result of the actions of William W. Spinalie and Johnny Butzly, I have been

deprived of my right to petition government.

7. As a result of the actions of William W. Spinalie and Johnny Butzly, I have been

damaged emotionally.

8. All the bar licensed attorneys whom I know are arrogant, ignorant, dishonest, stupid,

and lazy.

___________________________ Colleen Kincaid

STATE OF OKLAHOMA INDIVIDUAL ACKNOWLEDGMENT

COUNTY OF WASHINGTON

Before me, the undersigned, a Notary Public in and for said County and State on

this ____ day of ________, 2002, personally appeared _________________ to me known

to be the identical person who executed the within and foregoing instrument and

acknowledged to me that she executed the same as her free and voluntary act.

Given under my hand and seal the day and year last above written.

My commission expires __________ ________________________ Notary Public

117

False imprisonment

IN THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF ARIZONA

Arhtur E. Citizen, an individual, ) and ) Melvin W. Goodguy, an individual, ) ) Plaintiffs, ) )

vs. ) )

Robert M. Freebee, an individual, ) and ) Colleen McSnerd, an individual, ) ) Defendants. ) ____________________________________)

PETITION AND COMPLAINT IN THE NATURE OF A SUIT FOR DEPRIVATION OF FEDERALLY PROTECTED RIGHTS 42 USC 1983, FOR INJUNCTIVE AND

DECLARATORY RELIEF AND OTHER DAMAGES AS THE COURT SHALL DETERMINE REASONABLE, LAWFUL, AND JUST

1. Robert M. Freebee and Colleen McSnerd conspired under color of law to

deprive Arthur E. Citizen and Melvin W. Goodguy of federally protected rights

clearly articulated at United States Constitutional Amendments Four, Five, and Seven

specifically applying to the conspiracy of Mr. Freebee and Ms. McSnerd under

authority of United States Amendment Fourteen and the common law authorities of

Argersinger v. Hamlin, 407 U.S. 25 (1972), Walker v. McLain, 768 F.2d 1181 (10th

Cir. 1985), Lassiter v. Department of Social Services of Durham County, 452 U.S. 18,

68 L.Ed. 2d 640, 101 S.Ct. 2153, rehearing denied, 453 U.S. 927, 102 S.Ct. 889, 69

L.Ed. 1023 (1981), Southern Pacific Terminal Co. v. I.C.C., 219 U.S. 498, 55 L.Ed.

310, 31 S.Ct. 279 (1911), Weinstein v. Bradford, 423 U.S. 147, 149, 46 L.Ed. 2d 350,

96 S.Ct. 347 (1975), Carafas v. LaVal Citizen, 391 U.S. 234, 20 L.Ed. 554, 88 S.Ct.

1556 (1968), Lane v. Williams, 455 U.S. 624, 632, 71 L.Ed. 2d 508, 102 S.Ct. 1322

(1982) (quoting Sibron v. New York, 392 U.S. 40, 57, 20 L.Ed. 917, 88 S.Ct. 1889

118

(1967)), Ridgeway v. Baker, 720 F.2d 1409, 1411-12 n.2 (5th Cir. 1983) (quoting

Sibron, 392 U.S. at 55), Matthews v. Eldrige, 424 U.S. 319, 335, 47 L.Ed. 2d 18, 96

S.Ct. 893 (1976), Pulliam v. Allen, 466 U. S. 522, 80 L.Ed. 565, 104 S.Ct. 1970, 52

U.S.L.W. 4525 (1984), Gregory v. Thompson, 500 F.2d 59, 62 (9th Cir. 974), Lopez

v. Vanderwater, 620 F.2d 555 (1980), U. S. v. Price, 383 U.S. 787 (1966), and U.S. v.

Guest, 383 U.S. 745 (1966).

2. Cause for injunctive and declaratory relief: August 8, 2001, Freebee and

McSnerd conspired to imprison and did imprison Arthur E. Citizen and Melvin W.

Goodguy as a coercive tactic to obtain a large sum of money and property from Mr.

Citizen and Mr. Goodguy under fraudulent pretenses. The imprisonment took place

without informing Arthur E. Citizen and Melvin W. Goodguy of right of counsel,

without benefit of assistance of counsel, and with full knowledge of Freebee and

McSnerd that their conspired to act was ultra vires, extra-judicial, out of court, totally

phony and dishonest. Ironically, Colleen McSnerd had confessed on record that the

occurrences eventuating in the imprisonment of Arthur E. Citizen and Melvin W.

Goodguy were criminal acts. Colleen McSnerd had actual knowledge that Robert M.

Freebee, in concert with others, had committed a pattern of criminal acts. Robert M.

Freebee and Colleen McSnerd had actual knowledge that the claim asserted against

Arthur E. Citizen, Melvin W. Goodguy, and others, was void on its face: the record

verifies that Freebee and McSnerd knew that the parties, including Arthur E. Citizen

and Melvin W. Goodguy, did not receive notice and have opportunity prior to the

sham “judgment” being rendered against them and the sham “judgment” was an un-

apportioned joint and several liability judgment, illegal under Arizona law. The

incorrigibles, Freebee and McSnerd, will no doubt claim that the judgment which

they were coercively attempting to execute on August 8, 2001 is not void. Reading

the appendix attached reveals that such an assertion by Freebee and McSnerd only

establishes that they are either incompetent or dishonest. Records show that even after

seeking of bankruptcy protection, Freebee and McSnerd maintained phony arrest

warrants with clear criminal intent to try to continue execution on the sham, void

judgment. WHEREAS, the bad behavior of Freebee and McSnerd is likely to repeat,

Arthur E. Citizen and Melvin W. Goodguy are lawfully entitled to injunctive and

119

declaratory relief prohibiting Robert M. Freebee and Colleen McSnerd from

warranting the arrest of, imprisoning, threatening in any way, attempting to execute

on the void judgment, or contacting Arthur E. Citizen or Melvin W. Goodguy in any

way. Proper administration of law requires Robert M. Freebee and Colleen McSnerd

be restrained from having any contact with Arthur E. Citizen or Melvin W. Goodguy

ever again.

3. Cause for other damages: The conspired to acts of Freebee and McSnerd

injured Arthur E. Citizen and Melvin W. Goodguy financially, socially, and

emotionally. Robert M. Freebee is blameworthy and fully liable under United States

Supreme Court rulings which illustrate that private individuals are within reach of 42

USC 1983 when acting in conspiracy with state officials. Colleen McSnerd is

blameworthy and fully liable under common law authorities that require Colleen

McSnerd be stripped of any presumption of immunity for her acts done in clear

absence of all jurisdiction: When McSnerd confessed knowledge of criminal acts

committed to obtain “judgment” and took judicial notice that Freebee’s “judgment”

was void on its face, McSnerd was deprived of jurisdiction. Records suggest that

Colleen McSnerd does not understand what is meant by “subject matter jurisdiction.”

McSnerd should be instructed by this court that subject matter jurisdiction is the

power of a court to rule and determine a case or cause; subject matter jurisdiction is

lacking where there is a deprivation of due process or where the specific ruling is

prohibited by law; the rule allowing relief from a judgment void on its face is non-

discretionary; and, where the judge proceeds to compel execution on a judgment after

noticing that the judgment is void is acting in clear absence of all jurisdiction.

4. Standard of review: This court should apply King v. Coon as the standard of

review. In King, a citizen was subjected to excessive force, which included severe

beating. The offense to the rights of Rodney King were accomplished by those

shown to have “profiled” and the actual act occurred in “the heat of the moment”

where the perpetrators might reasonably have had a concern for their own personal

safety. Records show that Freebee and McSnerd are members of a private business

organization which effectively profiles persons like Arthur E. Citizen and Melvin W.

Goodguy. The conduct of Freebee and McSnerd was not in the heat of the moment

120

and neither Freebee nor McSnerd can excuse their conduct as apprehension that

Arthur E. Citizen or Melvin W. Goodguy might harm them in some way. The acts of

Freebee and McSnerd were “cold-blooded” cruelty machinated over a long time.

Although Arthur E. Citizen and Melvin W. Goodguy were not beaten, Citizen and

Goodguy were imprisoned where they literally feared for their lives and averted

assault by conducting a literal prayer meeting. In King, the judgment was one million

dollars. Considering the totality of the circumstances and that Freebee and McSnerd

thought that Arthur E. Citizen and Melvin W. Goodguy should be defrauded of

seven-hundred thousand dollars ($700,000.00), the judgment should be reasonably

the same result as King. In actuality, perfect justice would additionally require

Freebee and McSnerd be incarcerated in the very same cell for the same length of

time that Arthur E. Citizen and Melvin W. Goodguy were unlawfully forced into by

Freebee and McSnerd.

JURY TRIAL DEMANDED Prepared and submitted by: _________________________________________

Arthur E. Citizen Melvin W. Goodguy

121

AFFIDAVIT

I, Arthur E. Citizen, of lawful age and competent to testify state as follows based on my own personal knowledge: 1. August 8, 2001, Robert M. Freebee and Colleen McSnerd imprisoned me in

the Maricopa County jail. I was not informed of my right to counsel. I was imprisoned

without benefit of assistance of counsel. I did not waive my right to counsel.

2. Robert M. Freebee and Colleen McSnerd were both in receipt of actual notice

of a pattern of criminal acts committed by associates of Robert M. Freebee leading up to

my imprisonment. Robert M. Freebee and Colleen McSnerd had actual knowledge that

the so-called judgment which Mr. Freebee and Ms. McSnerd were attempting to execute

against me was void on its face.

3. I have exercised due diligence to attempt to resolve the issues of this

complaint, but Robert M. Freebee and Colleen McSnerd have been intractable.

4. As the result of acts of Robert M. Freebee and Colleen McSnerd, I have been

damaged financially, socially, and emotionally. Additionally, I have been deprived of my

right to travel and have a constant apprehension of being robbed and feel that my life is

threatened by Robert M. Freebee and Colleen McSnerd.

_____________________________ Arthur E. Citizen

STATE OF ARIZONA INDIVIDUAL ACKNOWLEDGMENT

COUNTY OF MARICOPA Before me, the undersigned, a Notary Public in and for said County and State, on

this ____ day of ________, 2002, personally appeared _________________ to me known

to be the identical person who executed the within and foregoing instrument and

acknowledged to me that he executed the same as his free and voluntary act.

Given under my hand and seal the day and year last above written.

My commission expires __________ ________________________ Notary Public

122

AFFIDAVIT

I, Melvin W. Goodguy, of lawful age and competent to testify state as follows based on my own personal knowledge: 1. August 8, 2001, Robert M. Freebee and Colleen McSnerd imprisoned me in

the Maricopa County jail. I was not informed of my right to counsel. I was imprisoned

without benefit of assistance of counsel. I did not waive my right to counsel.

2. Robert M. Freebee and Colleen McSnerd were both in receipt of actual notice

of a pattern of criminal acts committed by associates of Robert M. Freebee leading up to

my imprisonment. Robert M. Freebee and Colleen McSnerd had actual knowledge that

the so-called judgment which Mr. Freebee and Ms. McSnerd were attempting to execute

against me was void on its face.

3. I have exercised due diligence to attempt to resolve the issues of this

complaint, but Robert M. Freebee and Colleen McSnerd have been intractable.

4. As the result of acts of Robert M. Freebee and Colleen McSnerd, I have been

damaged financially, socially, and emotionally. Additionally, I have been deprived of my

right to travel and have a constant apprehension of being robbed and feel that my life is

threatened by Robert M. Freebee and Colleen McSnerd.

______________________________ Melvin W. Goodguy

STATE OF ARIZONA INDIVIDUAL ACKNOWLEDGMENT

COUNTY OF MARICOPA Before me, the undersigned, a Notary Public in and for said County and State, on

this ____ day of ________, 2002, personally appeared _________________ to me known

to be the identical person who executed the within and foregoing instrument and

acknowledged to me that he executed the same as his free and voluntary act.

Given under my hand and seal the day and year last above written.

My commission expires __________ ________________________ Notary Public

123

SECTION EIGHT: Attacking the internal revenue service HOW LONG WILL YOU (YES, YOU!) ALLOW THE i. r. s. TO CONTINUE TO INTERFERE IN OUR LIVES? Workbook assignment: Read the IRS Restructuring and Reform Act of 1998. Would you believe that a RACS 006 is not an assessment? Workbook assignment: Research http://frwebgate.access.gpo.gov/cgi-bin/useftp.cgi?IPaddress=162.140.64.21&filename=ai96056t.txt&directory=/diskb/ (search GAO – search archive of GPO reports for report T-AIMD-96-96) Remedies: 28 USC 2410, 26 USC 7433 Tools: Request for taxpayer assistance order (appendix) Many still believe that the IRS must have a judgment or warrant to take money or property. What does 26 USC 6331 in the annotated say about the IRS’s authority to take money or property? To have standing to sue the United States for IRS misconduct, administrative remedies must be exhausted. Administrative remedies:

1. Dispute the tax obligation. 2. Mitigate damages.

3. Request a refund.

124

Dispute letter: Date Certified No. ( ) LABEL HERE Mr. Mark Everson, Commissioner Internal Revenue Service 1111 Constitution Avenue, Room 3000 Washington, D.C. 20024 Re: Dispute of “tax” obligation owed. Dear Mr. Everson: I am again in receipt of suspicious demands. Since these papers do not bear a

signature and are not accompanied by validating documentation, I have no means to

evaluate their integrity. I object to those under your direct supervision sending me

threatening letters without clear identification of who sent the letter and their authority to

do so. To enable me to determine whether the threatening letters are frauds, I request that

you send me an assessment for each of the following years: 19xx, 19xx, 19xx, 19xx,

19xx, 19xx, 19xx, 19xx, and 19xx. If I do not hear from you within thirty (30) days of

the verifiable receipt of this letter disputing a tax obligation for the years in question, I

will reasonably conclude that there are no assessments for the years referenced and shall

expect your internal investigation to determine who violated laws by sending the

threatening letters and will also request a refund from the treasurer.

Thanking you in advance for respecting my right to DISPUTE A TAX

OBLIGATION,

Samuel L. Adams

125

Request for refund: May 20, 2003 Certified No. ( ) LABEL HERE John Snow U.S. Treasury 1500 Pennsylvania Avenue, NW Washington, D.C. 20220 Dear Mr. Snow:

I request that you refund all sums taken from me for “taxes.” Since agents

purporting to represent the treasury have repeatedly refused to document and verify that I

am a taxpayer owing a tax, I am without a means to know how much of my money your

agency has taken, for what alleged years or anything else. Since I am deprived of a

means to know what your representatives want, I am simply asking that you refund all

sums taken from me.

Thanking you in advance for respecting my rights,

Bettie G. Healy

126

THE END OF THE i. r. s.

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

Bobby Don Farmer, ) ) Plaintiff, ) ) vs. ) CIVIL No.__________________ ) UNITED STATES OF AMERICA, ) Ex rel., Donald N. Dowie, Jr., Patrick M. ) Ryan, and Robin J. Cauthron, ) ) Defendants. ) ____________________________________ )

Petition, claim and complaint under authority of 26 USC 7433, 7602(d), 7214 (a), 6335(e)(1), 6331(j), 6501(c), and 6502(a)

1. FIRST CAUSE OF ACTION: The United States of America, by and through

actors Donald N. Dowie, Jr., Patrick M. Ryan, and Robin J. Cauthron, hereinafter “the

actors,” violated 26 USC 7602(d). The actors, in connection with collection of Federal

tax with respect to Bobby Don Farmer evaluated Bobby Don Farmer according to a

presumed financial status audit. The actors based their audit of Bobby Don Farmer on

property perceived as owned by Bobby Don Farmer and not on any records or returns

whatsoever. The actors made unreasonable calculations of what Bobby Don Farmer was

perceived to own and presumed a tax bill many times what the Farmer property was

worth.

2. SECOND CAUSE OF ACTION: The actors violated 26 USC 6501(c) and

6502(a) by collecting in respect of years beginning with 1976. This court shall notice that

the IRS has ten (10) years from the assessment to collect a tax. This court shall notice

that Bobby Don Farmer has not agreed to an extension of time to collect tax; in fact,

Bobby Don Farmer has not been noticed of right to object to extension of time to collect

tax. Regardless, 26 USC 3461 required all extensions to expire December 31, 2002.

127

3. THIRD CAUSE OF ACTION: The actors have violated 26 USC 7214(a) by

collecting sums greater than appear on the summary record of assessments for years

beginning with 1976.

4. FOURTH CAUSE OF ACTION: The actors conspired to violate 26 USC

7214(a) by fraudulently alleging a tax bill approximately ONE HUNDRED TIMES

GREATER than Bobby Don Farmer could owe under any theory as a means of extorting

property from Bobby Don Farmer and others whom the actors presume to be alter egos of

Bobby Don Farmer.

5. FIFTH CAUSE OF ACTION: The actors conspired to violate and did violate

26 USC 6335(e)(1) and e(4) by selling seized property at less than minimum bid.

6. SIXTH CAUSE OF ACTION: The actors conspired to violate and did violate

26 USC 6331(j) by not only refusing to release the levy, but sold property insufficient to

generate proceeds to pay the alleged unpaid tax.

7. Bobby Don Farmer is entitled to injunctive relief beyond reach of 26 USC

7421: The United States has no possibility of disproving the claims of Bobby Don

Farmer and Bobby Don Farmer has already suffered extreme hardship.

8. In an effort to resolve the issues brought before this court, Bobby Don Farmer

has exhausted all requisite administrative remedies.

Prayer for relief and remedy sought

9. The cause of justice and the rule of law justly require this court’s Order

enjoining the Internal Revenue Service from any further collection activity until all

claims are fully resolved and return of all sums wrongfully collected.

10. The cause of justice and the rule of law justly require this court’s Order

remanding Donald N. Dowie, Jr., Patrick M. Ryan, and Robin J. Cauthron to other

authority for preference of charges under authority of 26 USC 7214(a).

JURY TRIAL DEMANDED

Prepared and submitted by: ______________________________________ Bobby Don Farmer Route 1, Box 60 Union City, Oklahoma 73090

128

AFFIDAVIT

I, Bobby Don Farmer, of lawful age and competent to testify state as follows based on my own personal knowledge: 1. Prior to the collection activity of the Internal Revenue Service, I was a farmer

who did well to provide for his family and preserve the value of the farm property.

2. As a farmer, I paid taxes which I was able to determine were lawfully owed.

3. I am not in receipt of any document verifying that I owed a tax bill to the

United States Treasury.

4. As a result of the extortion of Donald N. Dowie, Jr., Patrick M. Ryan, Robin J.

Cauthron and others, I have been deprived of property that was rightfully mine without

due process of law and other family members are threatened with being deprived of

property without due process of law. I have been reduced to poverty; and yet, Donald N.

Dowie, Jr., Patrick M. Ryan, Robin J. Cauthron and others still claim that I owe the

United States Treasury about six million dollars.

_____________________________ Bobby Don Farmer

STATE OF OKLAHOMA INDIVIDUAL ACKNOWLEDGMENT

COUNTY OF _____________________ Before me, the undersigned, a Notary Public in and for said County and State, on

this ____ day of ________, 2002, personally appeared _________________ to me known

to be the identical person who executed the within and foregoing instrument and

acknowledged to me that he executed the same as his free and voluntary act.

Given under my hand and seal the day and year last above written.

My commission expires __________ ________________________ Notary Public

129

HOW ABOUT RELIEF FROM JUDGMENT FOR WILLFUL FAILURE TO FILE AND / OR INCOME TAX EVASION?

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

United States of America, ) ) ) vs. ) Criminal number CR- 97-555555 ) Civil number Douglas J. Fortune, ) ) defendant. ) ____________________________________)

Defendant, Douglas J. Fortune’s 28 USC 2255 motion to vacate a void judgment / mandatory judicial notice, Federal Rules of Evidence Rule 201

1. Douglas J. Fortune, an aggrieved party, petitions this court under authority of

28 USC 2255 for vacation of a void judgment attached.

2. The court in case number CR97-042-S-EJL in the United States District Court

for the District of Idaho wanted subject matter jurisdiction to rule and determine whether

Douglas J. Fortune had attempted to defraud the United States by filing tax returns.

3. Fraud on the court deprives the court of subject matter jurisdiction. Cites

omitted. Edward J. Lodge must be considered intelligent, educated and trained in law and

therefore immediately comprehends the terms subject matter jurisdiction, fraud on the

court, and void judgment.

4. Individuals such as Douglas J. Fortune have neither the power nor the

authority to assess themselves to determine by their own analysis that they are taxpayers

owing a tax to the United States Treasury. Also, by the advocate / prosecutor’s own

admission in the proceedings, the federal district court does not have inherent jurisdiction

to determine tax due and owing the United States Treasury regarding individuals such as

Douglas J. Fortune.

130

5. Before sums deposited in respect of a presumed taxpayer can be converted to

use by the United States Treasury, the “taxpayer” must be assessed. The “code”

articulates clearly what an “assessment” is and no form exists other than defined in the

code as an assessment. The assessment process regarding federal income taxes is a matter

controlled by statutes and regulations. In the 1954 and 1986 Internal Revenue Codes,

§6201(a) authorizes the Secretary of the Treasury to make assessments. The method of

recording such an administrative act is governed by §6203, which provides:

"The assessment shall be made by recording the liability of the taxpayer in the

office of the Secretary in accordance with rules or regulations prescribed by the

Secretary. Upon request of the taxpayer, the Secretary shall furnish the

taxpayer a copy of the record of assessment."

The specific tax regulation concerning the assessment process is 26 C.F.R.,

§301.6203-1, which reads in pertinent part:

"The district director and the director of the regional service center shall appoint

one or more assessment officers. The assessment shall be made by an assessment

officer signing the summary record of the assessment. The summary record,

through supporting records, shall provide identification of the taxpayer, the

character of the liability assessed, the taxable period, if applicable, and the

amount of the assessment. The amount of the assessment shall, in the case of tax

shown on a return by the taxpayer, be the amount so shown, and in all other cases

the amount of the assessment shall be the amount shown on the supporting list or

record."

In Internal Revenue Manual 5312(1), MT 5300-1 (11-15-85), this assessment

process is further clarified:

"(1) The assessment is made by an assessment officer designated by the District

Director or Service Center Director, as appropriate. The assessment officer signs a

Form 23-C, Assessment Certificate, and this record, through supporting data,

provides identification of the taxpayer by name and number, the taxable period,

the nature of the tax and the amount assessed."

131

"(3) ... The assessment lists support the assessment certificate, which is used to

summarize and record the official action of the assessment officer."

Thus, by the Service's own admission in its IR Manual, "[t]he assessment lists

support the assessment certificate..." Pursuant to Fed.R.Evid. 801(d)(2)(D), this is a party

admission that an assessment list must exist; see United States v. Van Griffin, 874 F.2d

634, 638 (9th Cir. 1989) (government manuals admissible as party admissions under

Fed.R.Evid. 801(d)(2)(D)). There can be no dispute that the assessment list is the

supporting record and is absolutely essential before a valid assessment is made. Further,

the regulation contemplates a signed document. This is consistent with the supporting

statute which provides that the taxpayer is entitled to a copy, which implies that a hard

copy exists.

In addition to the above IRM provision which shows that Form 23-C is the

assessment form, established decisional authority also shows that a tax assessment is

made upon Form 23-C. For example, in Meyersdale Fuel Co. v. United States, 44 F.2d

437, 443 (Ct.Cl. 1930), this form was mentioned:

"When the Commissioner of Internal Revenue makes an assessment of taxes he

signs a list entitled 'Commissioner's assessment list' on Form 23C-1."

In Brafman v. United States, 384 F.2d 863 (5th Cir. 1967), there was also a

demonstration of how tax assessments are executed upon Form 23-C. There, the

government sought to attach liability for unpaid estate taxes to an heir of that estate under

a transferee liability theory. But, Mrs. Brafman argued that she was not so liable because

the assessment certificate relevant in that case was unsigned. In agreeing with that

argument and holding the certificate at issue void, that court stated:

"The assessment certificate involved in this case, a photostated [sic] copy of

which is in the record, is not signed by an assessment officer or by any other

official... Since the certificate lacks the requisite signature, it cannot constitute a

valid assessment," Id., at 865-66.

132

"Even the instructions on the reverse side of the assessment certificate, Form 23C,

specify that the original form 'is to be transmitted to the District Director for

signature, after which it will be returned to the Accounting Branch for permanent

filing,'" Id., at 866.

"What is important in any case is that assessment is not automatic upon

recordation; it requires the action of an assessment officer. That action, as defined

explicitly in the Treasury Regulations, is the signing of the certificate," Id., at 867.

See also Stallard v. United States, 806 F.Supp. 152, 158 (W.D. Tex. 1992)

("Defendant submitted a 'Form 23C' which it asserts is a summary record of

assessment.")

Several cases disclose the type of information which must be contained on a Form

23-C tax assessment record and its supporting list. For example, in Lanelli v. Long, 329

F.Supp. 1241, 1242 (W.D. Pa. 1971), that description of the various data was as follows:

"The procedure for assessment provides, inter alia, that the assessment officer

shall sign the summary record of assessments made against any taxpayer, that said

action, through supporting records, shall provide identification of the taxpayer,

the character of the liability assessed, the taxable period as applicable, and the

amount of the assessment. The date of the assessment is the date the summary

record is signed by an assessment officer. 26 U.S.C.A. § 301.6203-1, Code of

Federal Regulations. Since this procedure was not followed, the assessment is

void and the executions based thereon are invalid."

In Planned Investments, Inc. v. United States, 881 F.2d 340, 343 (6th Cir. 1989),

the court examined the requirements of 26 C.F.R., §301.6203-1, and stated:

"Section 6203 of Subchapter A provides that assessment be made by recording

the liability in accordance with the regulations promulgated by the Secretary. 26

U.S.C. § 6203 ... Treasury regulations provide that the assessment be made by

signing the summary record of assessment. 26 CFR § 301.6203-1. The summary

record, through supporting documents, must contain the following:

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(1) identification of the taxpayer;

(2) character of liability assessed;

(3) taxable period, if applicable;

(4) and amount of assessment."

Finally, the court in Robinson v. United States, 920 F.2d 1157, 1158 (3rd Cir.

1990), described the assessment process as:

"A duly designated official for the district or regional tax center signs the

summary record of the assessment, which identifies the taxpayers, the type of tax

owed, the taxable period and the amount of the assessment. 26 U.S.C. §6203;

Treas. Reg. §301.6203-1."

Therefore, from the above authority, the documents which are executed in

making an assessment are clearly known. First, the assessment is made on a Form

23-C. This assessment form may apply either to a single individual or a group. The

supporting documentation for a Form 23-C is the assessment lists, which must

contain: (1) the identification of the taxpayer; (2) character of liability assessed; (3)

taxable period, if applicable; and (4) amount of the assessment. {If these documents

do not exist, the absence proves that there has been no assessment and, consequently, no

tax collection activities may be pursued.} Mandatory judicial notice F.R.E. Rule 201.

6. So-called Department of Justice attorneys will no doubt raise the FALSE

argument that the D.O.J. and IRS can throw any mud on the wall and call it “evidence.”

In re: United States v. Jones, 958 F.2d 520, (2d Cir. 1992), United States v. Hayes, 861

F.2d 1225 (10th Cir. 1988), United States v. Bowers, 920 F.2d 220 (4th Cir. 1990), and

United States v. Neff, 615 F.2d 1235, (9th Cir. 1980). These authorities prove two things:

(1) The so-called Department of Justice has repeatedly committed FRAUD ON THE

COURT TO PERFECT ITS TAX CASES, (2) federal judges AND THE EVER

INFAMOUS AGENTS OF A KNOWN SYNDICATE OF ORGANIZED CRIME,

THE LAW CLERKS, with a duty to make inquiry, reasonable under the circumstances,

into the integrity of the “evidence,” ARE IN ON THE SCAM. This court is noticed that

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forensic accounting has proved that the IRS and DOJ have been operating as key

components of racketeering. This court is especially noticed regarding the following

forensic accounting report: IRS Operations: Significant Challenges in Financial Management and Systems Modernization (Testimony, 03/06/96, GAO/T-AIMD-96-56). GAO discussed its: (1) fiscal year 1994 financial audit of the Internal Revenue Service (IRS); and (2) evaluation of the IRS Tax System Modernization (TSM) effort. GAO noted that: (1) IRS did not use its revenue general ledger accounting system or its master files for its revenue reports, but relied on alternative sources such as Treasury schedules; (2) there were large discrepancies between information in IRS master files and Treasury data; (3) IRS did not properly document transactions or perform adequate analysis to ensure the reliability of the information it reported; (4) IRS was unable to reconcile its accounts and could not substantiate some of its expenses; (5) IRS has initiated actions to correct some previously identified problems concerning computer security, payroll processing, funds reconciliation and monitoring, its budgetary and management control systems, and receipt balance accuracy; and (6) in spite of those actions, IRS lacks the strategic information management practices, software development capability, systems architecture, and effective organization structure to manage and control system modernization. --------------------- Indexing Terms ---------------------- REPORTNUM: T-AIMD-96-56 TITLE: IRS Operations: Significant Challenges in Financial Management and Systems Modernization DATE: 03/06/96 SUBJECT: Federal agency accounting systems Internal controls Financial statement audits Strategic information systems pButzly Tax administration systems Accounts receivable Accounting procedures Information resources management Systems conversions Financial records IDENTIFIER: IRS Tax System Modernization Program TSM

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Before the Subcommittee on Government Management, Information and Technology, Committee on Government Reform and Oversight, House of Representatives For Release on Delivery Expected at 1:30 p.m., Wednesday, March 6, 1996 IRS OPERATIONS - SIGNIFICANT CHALLENGES IN FINANCIAL MANAGEMENT AND SYSTEMS MODERNIZATION Statement of Gene L. Dodaro Assistant Comptroller General Accounting and Information Management Division GAO/T-AIMD-96-56 Mr. Chairman and Members of the Subcommittee: I am pleased to be here today to discuss the results of our fiscal year 1994 financial audit of the Internal Revenue Service (IRS)—our most recently completed audit--and our reports evaluating IRS' Tax Systems Modernization (TSM) effort. Last year, we issued two major assessments concerning IRS' guardianship of federal revenues and its ability to function efficiently in an increasingly high technology environment. I am submitting these reports for the record: Financial Audit: Examination of IRS' Fiscal Year 1994 Financial Statements (GAO/AIMD-95-141, August 4, 1995) and Tax Systems Modernization: Management and Technical Weaknesses Must Be Corrected if Modernization Is To Succeed (AIMD-95-156, July 26, 1995). These reports (1) highlighted a number of serious technical and managerial problems that IRS must directly address to make greater progress in both of these areas, (2) discussed actions being taken by IRS to strengthen its operations, and (3) presented numerous specific GAO recommendations for needed additional improvements. IRS agreed with all our recommendations and committed itself to taking the corrective measures necessary to improve its financial management and information technology capability and operations. We currently are in the process of auditing IRS' fiscal year 1995 financial statements and evaluating IRS' response to the recommendations we made

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regarding its TSM program. We discuss each of these areas in the following sections. FINANCIAL MANAGEMENT WEAKNESSES PERSIST Chapter 0:1 For the last 3 fiscal years, we have been unable to express an opinion on IRS' financial statements because of the pervasive nature of its financial management problems. We were unable to express an opinion on IRS' financial statements for fiscal year 1994 for the following five primary reasons. One, the amount of total revenue of $1.3 trillion reported in the financial statements could not be verified or reconciled to accounting records maintained for individual taxpayers in the aggregate. Two, amounts reported for various types of taxes collected, for example, social security, income, and excise taxes, could also not be substantiated. Three, we could not determine from our testing of IRS' gross and net accounts receivable estimates of over $69 billion and $35 billion, respectively, which include delinquent taxes, whether those estimates were reliable. Four, IRS continued to be unable to reconcile its Fund Balance With Treasury accounts. Five, we could not substantiate a significant portion of IRS' $2.1 billion in non-payroll expenses included in its total operating expenses of $7.2 billion, primarily because of lack of documentation. However, we could verify that IRS properly accounted for and reported its $5.1 billion of payroll expenses. To help IRS resolve these issues, we have made dozens of recommendations in our financial audit reports dating back to fiscal year 1992. In total, we have made 59 recommendations on issues covering such areas as tax revenue, administrative costs, and accounts receivable. While IRS has begun to take action on many of our recommendations, as of the date of our last report--August 4, 1995--it had fully implemented only 13 of our 59 recommendations.

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IRS has made some progress in responding to the problems we identified in our previous audits. However, IRS needs to intensify its efforts in this area. IRS needs to develop a detailed plan with explicit, measurable goals and a set timetable for action, to attain the level of financial reporting and controls needed to effectively manage its massive operations and to reliably measure its performance. The sections below discuss these issues in greater detail. ISSUES WITH REVENUE -------------------------------------------------------- Chapter 0:1.1 IRS' financial statement amounts for revenue, in total and by type of tax, were not derived from its revenue general ledger accounting system (RACS) or its master files of detailed individual taxpayer records. This is because RACS did not contain detailed information by type of tax, such as individual income tax or corporate tax, and the master file cannot summarize the taxpayer information needed to support the amounts identified in RACS. As a result, IRS relied on alternative sources, such as Treasury schedules, to obtain the summary total by type of tax needed for its financial statement presentation. IRS asserts that the Treasury amounts were derived from IRS records; however, neither IRS nor Treasury's records maintained any detailed information that we could test to verify the accuracy of these figures. As a result, to substantiate the Treasury figures, we attempted to reconcile IRS' master files--the only detailed records available of tax revenue collected--with the Treasury records. We found that IRS' reported total of $1.3 trillion for revenue collections, which was taken from Treasury schedules, was $10.4 billion more than what was recorded in IRS' master files. Because IRS was unable to satisfactorily explain, and we could not determine the reasons for this difference, the full magnitude of the discrepancy remains uncertain. In addition to the difference in total revenues collected, we also found large discrepancies between information in IRS' master files and the Treasury data used for the various types of taxes reported in IRS' financial statements. Some of the larger reported amounts for which IRS had insufficient support were $615 billion in individual taxes collected--this amount was $10.8 billion

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more than what was recorded in IRS' master files; $433 billion in social insurance taxes (FICA) collected--this amount was $5 billion less than what was recorded in IRS' master files; and $148 billion in corporate income taxes--this amount was $6.6 billion more than what was recorded in IRS' master files. Thus, IRS did not know and we could not determine if the reported amounts were correct. These discrepancies also further reduce our confidence in the accuracy of the amount of total revenues collected. Despite these problems, we were able to verify that IRS' reported total revenue collections of $1.3 trillion agreed with tax collection amounts deposited at the Department of the Treasury. However, we did find $239 million of tax collections recorded in IRS' RACS general ledger that were not included in reported tax collections derived from Treasury data. In addition to these problems, we could not determine from our testing the reliability of IRS' projected estimate for accounts receivable. As of September 30, 1994, IRS reported an estimate of valid receivables of $69.2 billion,\2 of which $35 billion\3 was deemed collectible. However, in our random statistical sample of accounts receivable items IRS tested, we disagreed with IRS on the validity of 19 percent\4 of the accounts receivable and the collectibility of 17 percent\5 of them. Accordingly, we cannot verify the reasonableness of the accuracy of the reported accounts receivable. Inadequate internal controls, especially the lack of proper documentation of transactions, resulted in IRS continuing to report unsupported revenue information. In some cases, IRS did not maintain documentation to support reported balances. In other cases, it did not perform adequate analysis, such as reconciling taxpayer transactions to the general ledger, to ensure that reported information was reliable. We found several internal control problems that contributed to our inability to express an opinion on IRS' financial statements. To illustrate, IRS was unable to provide adequate documentation for 111 items, or 68 percent, in our random sample of 163 transactions from IRS' Non-master file. The non-master file is a database of taxpayer transactions that cannot be

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processed by the two main master files or are in need of close scrutiny by IRS personnel. These transactions relate to tax years dating as far back as the 1960s. During fiscal year 1994, approximately 438,000 transactions valued at $7.3 billion were processed through the Non-master file. Because of the age of many of these cases, the documentation is believed to have been destroyed or lost. We sampled 4,374 statistically projectable transactions posted to taxpayer accounts. However, IRS was unable to provide adequate documentation, such as a tax return, for 524 transactions, or 12 percent. Because the documentation was lost, physically destroyed, or, by IRS policy, not maintained, some of the transactions supporting reported financial balances could not be substantiated, impairing IRS' ability to research any discrepancies that occur. IRS is authorized to offset taxpayer refunds with certain debts due to IRS and other government agencies. Before refunds are generated, IRS policy requires that reviews be performed to determine if the taxpayer has any outstanding debts to be satisfied. For expedited refunds, IRS must manually review various master files to identify outstanding debts. However, out of 358 expedited refunds tested, we identified 10 expedited refunds totaling $173 million where there were outstanding tax debts of $10 million, but IRS did not offset the funds. Thus, funds owed could have been collected but were not. IRS could not provide documentation to support $6.5 billion in contingent liabilities reported as of September 30, 1994. Contingent liabilities represent taxpayer claims for refunds of assessed taxes which IRS management considers probable to be paid. These balances are generated from stand-alone systems, other than the master file, that are located in two separate IRS divisions. Because these divisions could not provide a listing of transactions for appropriate analysis, IRS did not know, and we could not determine, the reliability of these balances. An area that we identified where the lack of controls could increase the likelihood of loss of assets and possible fraud was in the reversal of refunds. Refunds are reversed when a check is undelivered to a taxpayer, an error is identified, or IRS stops the refund for further review. In many cases, these refunds are subsequently reissued. If the refund was not actually stopped by Treasury, the

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taxpayer may receive two refunds. In fiscal year 1994, IRS stopped 1.2 million refunds totaling $3.2 billion. For 183 of 244, or 75 percent of our sample of refund reversals, IRS was unable to provide support for who canceled the refund, why it was canceled, and whether Treasury stopped the refund check. Service center personnel informed us that they could determine by a code whether the refund was canceled by an internal IRS process or by the taxpayer, but, as a policy, no authorization support was required, nor did procedures exist requiring verification and documentation that the related refund was not paid. With regard to controls over the processing of returns, we also identified four weaknesses. During fiscal year 1994, IRS processed almost 1 billion information documents and 200 million returns. In most cases, IRS processed these returns correctly. However, we found instances where IRS' mishandling of taxpayer information caused additional burden on the taxpayer and decreased IRS' productivity. In many cases, the additional taxpayer burden resulted from IRS' implementation of certain enforcement programs it uses to ensure taxpayer compliance, one of which is the matching program. This program's problems in timely processing cause additional burden when taxpayers discover 15 months to almost 3 years after the fact that they have misreported their income and must pay additional taxes plus interest and penalties. The range of IRS' confidence interval, at a 95-percent confidence level, is that the actual amount of valid accounts receivable as of September 30, 1994, was between $66.1 billion and $72.3 billion. The range of IRS' confidence interval, at a 95-percent confidence level, is that the actual amount of collectible accounts receivable as of September 30, 1994, was between $34 billion and $36 billion. The range for our confidence interval, at a 95-percent confidence level, is that the actual amount of the validity exceptions as of September 30, 1994, was between 14.5 percent and 24.2 percent. \5 The range for our confidence interval, at a 95-percent confidence level, is that the actual amount of the collectibility exceptions as of September 30, 1994, was between 13.1 percent and 22.5 percent.

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ISSUES WITH ADMINISTRATIVE OPERATIONS Chapter 0:1.2 IRS has made progress in accounting for its appropriated funds, but there were factors in this area that prevented us from being able to render an opinion. Specifically, IRS was unable to fully reconcile its Fund Balance with Treasury accounts, nor could it substantiate a significant portion of its $2.1 billion in non-payroll expenses--included in its $7.2 billion of operating expenses--primarily because of lack of documentation. With regard to its Fund Balance With Treasury, we found that, at the end of fiscal year 1994, un-reconciled cash differences netted to $76 million. After we brought this difference to the CFO's attention, an additional $89 million in adjustments were made. These adjustments were attributed to accounting errors dating back as far as 1987 on which no significant action had been taken until our inquiry. IRS was researching the remaining $13 million in net differences to determine the reasons for them. These net differences, which span an 8-year period, although a large portion date from 1994, consisted of $661 million of increases and $674 million of decreases. IRS did not know and we could not determine the financial statement impact or what other problems may become evident if these accounts were properly reconciled. To deal with its long-standing problems in reconciling its Fund Balance with Treasury accounts, during fiscal year 1994, IRS made over $1.5 billion in unsupported adjustments (it wrote off these amounts) that increased cash by $784 million and decreased cash by $754 million, netting to $30 million. In addition, $44 million of unidentified cash transactions were cleared from cash suspense accounts \6 and included in current year expense accounts because IRS could not determine the cause of the cash differences. These differences suggest that IRS did not have proper controls over cash disbursements as well as cash receipts. In addition to its reconciliation problems, we found numerous unsubstantiated amounts. These unsubstantiated amounts occurred because IRS did not have support for when and if certain goods or services were received and, in other instances, IRS had no support at all for the reported expense amount. These unsubstantiated amounts represented about 18 percent of IRS' $2.1 billion in total non-payroll

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expenses and about 5 percent of IRS' $7.2 billion in total operating expenses. Most of IRS' $2.1 billion in non-payroll related expenses are derived from interagency agreements with other federal agencies to provide goods and services in support of IRS' operations. For example, IRS purchases printing services from the Government Printing Office; phone services, rental space, and motor vehicles from the General Services Administration; and photocopying and records storage from the National Archives and Records Administration. Not having proper support for if and when goods and services are received made IRS vulnerable to receiving inappropriate interagency charges and other misstatements of its reported operating expenses, without detection. Not knowing if and/or when these items were purchased seriously undermines any effort to provide reliable, consistent cost or performance information on IRS' operations. As a result of these unsubstantiated amounts, IRS has no idea and we could not determine, when and, in some instances, if the goods or services included in its reported operating expenses were correct or received. Suspense accounts include those transactions awaiting posting to the appropriate account or those transactions awaiting resolution of unresolved questions. SOME IMPROVEMENTS MADE BUT OVERALL COMPUTER SYSTEMS SECURITY REMAINED WEAK Chapter 0:1.3 In our prior year reports, we stated that IRS' computer security environment was inadequate. Our fiscal year 1994 audit found that IRS had made some progress in addressing and initiating actions to resolve prior years' computer security issues; however, some of the fundamental security weaknesses we previously identified continued to exist in fiscal year 1994. These weaknesses were primarily IRS' employees' capacity to make unauthorized transactions and activities without detection. IRS has taken some actions to restrict account access, review and monitor user profiles, provide an automated tool to analyze computer usage, and install security resources. However, we found that IRS still

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lacked sufficient safeguards to prevent or detect unauthorized browsing of taxpayer information and to prevent staff from changing certain computer programs to make unauthorized transactions without detection. Chapter 0:1.4 The deficiencies in financial management and internal controls that I have discussed throughout this testimony demonstrate the long-standing, pervasive nature of the weaknesses in IRS' systems and operations--weaknesses which contributed to our inability to express a more positive opinion on IRS' financial statements. The erroneous amounts discussed would not likely have been identified if IRS' financial statements had not been subject to audit. Further, the errors and unsubstantiated amounts highlighted throughout this testimony suggest that information IRS provides during the year is vulnerable to errors and uncertainties as to its completeness and that reported amounts may not be representative of IRS' actual operations. IRS HAS TAKEN STEPS TO IMPROVE ITS OPERATIONS Chapter 0:2 IRS has made some progress in responding to the problems we have identified in previous reports. It has acknowledged these problems, and the Commissioner has committed to resolving them. These actions represent a good start in IRS' efforts to more fully account for its operating expenses. For example, IRS has successfully implemented a financial management system for its appropriated funds to account for its day-to-day operations, which should help IRS to correct some of its past transaction processing problems that diminished the accuracy and reliability of its cost information, and successfully transferred its payroll processing to the Department of Agriculture's National Finance Center and, as a result, properly accounted for and reported its $5.1 billion of payroll expenses for fiscal year 1994. IRS is working on improving the process of reconciling and monitoring its funds. In this regard, it has created a unit whose sole responsibility is to resolve all cash reconciliation issues and retained a contractor to help

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with this process. In the area of receipt and acceptance, IRS stated that it is more fully integrating its budgetary and management control systems. Also, IRS has developed a methodology to differentiate between financial receivables and compliance assessments and has modified current systems to provide financial management information. Finally, IRS is in the process of identifying methods to ensure the accuracy of balances reported in its custodial receipt accounts. We are currently reviewing these actions. MANAGEMENT AND TECHNICAL WEAKNESSES MUST BE CORRECTED IF MODERNIZATION IS TO SUCCEED Chapter 0:3 Over the past decade, GAO has issued several reports and testified before congressional committees on IRS' costs and difficulties in modernizing its information systems. As a critical information systems project that is vulnerable to schedule delays, cost over-runs, and potential failure to meet mission goals, in February 1995, tax systems modernization (TSM) was added to our list of high-risk areas. In July 1995, we reported that one of IRS' most pressing problems is efficiently and effectively processing the over 200 million tax returns it receives annually; handling about 1 billion information documents, such as W2s and 1099s; and, when needed, retrieving tax returns from the over 1.2 billion tax returns in storage. IRS' labor-intensive tax return processing, which uses concepts instituted in the late 1950s, intensifies the need to meet this enormous information processing demand by reengineering processes and using modern technology effectively. Since 1986, IRS has invested over $2.5 billion in TSM. It plans to spend an additional $695 million in fiscal year 1996 for this effort, and through 2001, it is expected to spend up to $8 billion on TSM. By any measure, this is a world-class information systems development effort, much larger than most other organizations will ever undertake. TSM is key to IRS' vision of a virtually paper-free work environment where taxpayer account updates are rapid, and taxpayer information is readily available to IRS employees to respond to taxpayer inquiries.

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IRS recognizes the criticality to future efficient and effective operations of attaining its vision of modernized tax processing, and has worked for almost a decade, with substantial investment, to reach this goal. In doing so, IRS has progressed in many actions that were initiated to improve management of information systems; enhance its software development capability; and better define, perform, and manage TSM's technical activities. However, our July report noted that the government's investment and IRS' efforts to modernize tax processing were at serious risk due to pervasive management and technical weaknesses that were impeding modernization efforts. In this regard, IRS did not have a comprehensive business strategy to cost-effectively reduce paper submissions, and it had not yet fully developed and put in place the requisite management, software development, and technical infrastructures necessary to successfully implement an ambitious world-class modernization effort like TSM. Many management and technical issues were unresolved, and promptly addressing them was crucial to mitigate risks and better position IRS to achieve a successful information systems modernization. First, IRS' business strategy did not maximize electronic filings because it primarily targeted taxpayers who use a third party to prepare and/or transmit simple returns, were willing to pay a fee to file their returns electronically, and were expecting refunds. Focusing on this limited taxpaying population overlooked most taxpayers, including those who prepared their own tax returns using personal computers, had more complicated returns, owed tax balances, and/or were not willing to pay a fee to a third party to file a return electronically. Without having a strategy that also targeted these taxpayers, we reported that IRS would not meet its electronic filing goals or realize its paperless tax processing vision. In addition, if, in the future, taxpayers file more paper returns than IRS expects, added stress will be placed on IRS' paper-based systems. Next, IRS did not have the full range of management and technical foundations in place to realize TSM objectives. In analyzing IRS' strategic information management practices, we drew heavily from our research on the best practices of private and public sector organizations that have been successful in improving their performance through

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strategic information management and technology. These fundamental best practices are discussed in our report, Executive Guide: Improving Mission Performance Through Strategic Information Management and Technology (GAO/AIMD-94-115, May 1994), and our Strategic Information Management (SIM) Self-Assessment Toolkit (GAO/Version 1.0, October 28, 1994, exposure draft). To evaluate IRS' software development capability, we validated IRS' August 1993 assessment of its software development maturity based on the Capability Maturity Model (CMM) developed in 1984 by the Software Engineering Institute at Carnegie Mellon University. CMM establishes standards in key software development processing areas and provides a framework to evaluate a software organization's capability to consistently and predictably produce high-quality products. To its credit, IRS had (1) developed several types of plans to carry out its current and future operations, (2) drafted criteria to review TSM projects, (3) assessed its software development capability and initiated projects to improve its ability to effectively develop software, and (4) started to develop an integrated systems architecture\9 and made progress in defining its security requirements and identifying current systems data weaknesses. However, despite activities such as these, pervasive weaknesses remained to be addressed: IRS' strategic information management practices were not fully in place to guide systems modernization. For example, (1) strategic pButzly was neither complete nor consistent, (2)information systems were not managed as investments, (3) cost and benefit analyses were inadequate, and (4) reengineering efforts were not tied to systems development projects. IRS' software development capability was immature and weak in key process areas. For instance, (1) a disciplined process to manage system requirements was not applied to TSM systems, (2) a software tool for pButzly and tracking development projects was inconsistently used, (3) software quality assurance functions were not well-defined or consistently implemented, (4) systems and acceptance testing were neither well-defined nor required, and (5) software configuration management \10 was incomplete. IRS' systems architecture (including its security architecture and data architecture), integration pButzly,

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and system testing and test pButzly were incomplete. For example, (1) effective systems configuration management practices were not established, (2) integration plans were not developed and systems testing was uncoordinated, and (3) standard software interfaces were not defined. Finally, IRS had not established an effective organizational structure to consistently manage and control system modernization organization-wide. The accountability and responsibility for IRS' systems development was spread among IRS' Modernization Executive, Chief Information Officer, and research and development division. To help address this concern, in May 1995, the Modernization Executive was named Associate Commissioner. The Associate Commissioner was assigned responsibility to manage and control modernization efforts previously conducted by the Modernization Executive and the Chief Information Officer, but not those of the research and development division. However, the research and development division still did not report to the Associate Commissioner. We made over a dozen specific recommendations to the IRS Commissioner in our report to enable IRS to overcome its management and technical weaknesses by December 1995. Our recommendations were intended to improve IRS' ability to successfully develop and implement TSM efforts in fiscal year 1996. The House Conference Report on IRS' fiscal year 1996 appropriation notes that legislative language "fences" $100 million in TSM funding and requires that the Secretary of the Treasury report to the Senate and House Appropriations Committees on the progress IRS has made in responding to our recommendations with a schedule for successfully mitigating deficiencies we reported. \11 As of March 4, 1996, the Secretary of the Treasury had not reported to the Committees on TSM. We are assessing IRS' actions and will provide a status report to the Committees by March 14, 1996. High-Risk Series: An Overview (GAO/HR-95-1, February 1995). Tax Systems Modernization: Management and Technical Weaknesses Must Be Corrected if Modernization Is To Succeed (GAO/AIMD-95-156, July 26, 1995).

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A system architecture is an evolving description of an approach to achieving a desired mission. It describes (1) all functional activities to be performed to achieve the desired mission, (2) the system elements needed to perform the functions, (3) the designation of performance levels of those system elements, and (4) the technologic interfaces and location of functions. Configuration management involves selecting project baseline items (for example, specifications), systematically controlling these items and changes to them, and recording their status and changes. House of Representatives Report 104-291, October 25, 1995. Chapter 0:3.1 Mr. Chairman, that concludes my statement. I would be happy to answer any questions you or Members of the Subcommittee might have. *** End of document. *** Emphasis added. This court is noticed: the

putative evidence used in CR-S-97-000-S-DJL was fabricated by so-called Department of

Justice Attorneys.

7. The so-called Department of Justice and the IRS in the matter of the United

States of America versus Douglas J. Fortune fabricated evidence with the intent that this

court, the jury, and Douglas J. Fortune rely on the fraudulent assertions to deprive

Douglas J. Fortune of liberty and property. A conviction obtained by the knowing use of

false or perjured testimony is fundamentally unfair, and must be set aside if there is any

reasonable likelihood that the false testimony could have affected the judgment of the

jury, United States v. Agurs, 427 U.S. 97, 103, 49 L.Ed. 2d 342, 96 S.Ct. 2392 (1976). It

is immaterial that the particular prosecutor in this case may not have known about the

evidence that revealed testimony as possibly false. The Justice Department’s various

offices ordinarily should be treated as an entity, the left hand of which is presumed to

know what the right hand is doing, Giglio v. United States, 405 U.S. 150, 154, 31 L.Ed.

2d 104, 92 S.Ct. 763 (1972). The function of the United States Attorney’s Office is not

merely to prosecute crimes, but also to make certain that the truth is honored to the fullest

extent possible during the course of the criminal prosecution and trial. The criminal trial

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should be viewed not as an adversarial sporting contest, but as a quest of truth. See

Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth? 1963 Wash.

U.L.Q. 279. The government is precluded from using evidence that is known to the

government to be false, Napue v. Illinois, 360 U.S. 264, 269, 3 L.Ed. 3d 1217, 79 S.Ct.

1173 (1959). The principle of not allowing the knowing use of false testimony does not

cease to apply merely because the false testimony goes only to the credibility of the

witness, Napue supra. We agree with Justice (then Judge) Stevens that the assertions

made by the government in a formal prosecution (and, by analogy, a formal civil defense)

establish the position of the United States and not merely the views of its agents who

participate therein, United States v. Powers, 467 F.2d 1089, 1097 n.1 (7th Cir. 1972)

(Stevens, J., dissenting).

9. Reasonably and logically, the prosecution and conviction of Douglas J.

Fortune served a purpose (particularly in the antiseptic light of forensic accounting) of

helping to deflect prosecution of virtually every IRS official, employee of the IRS,

federal judge, agents of fraud infecting the circuit courts and even the United States

Supreme Court in the persons of law clerks, and most attorneys of the so-called

Department of Justice under authority of 26 USC 7214(a) which clearly states:

Sec. 7214. Offenses by officers and employees of the United States. -STATUTE- (a) Unlawful acts of revenue officers or agents. Any officer or employee of the United States acting in connection with any revenue law of the United States-- (1) who is guilty of any extortion or willful oppression under color of law; or (2) who knowingly demands other or greater sums than are authorized by law, or receives any fee, compensation, or reward, except as by law prescribed, for the performance of any duty; or(3) who with intent to defeat the application of any provision of this title fails to perform any of the duties of his office or employment; or (4) who conspires or colludes with any other person to defraud the United States; or (5) who knowingly makes opportunity for any person to defraud the United States; or (6) who does or omits to do any act with intent to enable any other person to defraud the United States; or (7) who makes or signs any fraudulent entry in any book, or makes or signs any fraudulent certificate, return, or statement;

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or (8) who, having knowledge or information of the violation of any revenue law by any person, or of fraud committed by any person against the United States under any revenue law, fails to report, in writing, such knowledge or information to the Secretary; or (9) who demands, or accepts, or attempts to collect, directly or indirectly as payment or gift, or otherwise, any sum of money or other thing of value for the compromise, adjustment, or settlement of any charge or complaint for any violation or alleged violation of law, except as expressly authorized by law so to do; shall be dismissed from office or discharged from employment and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both. The court may in its discretion award out of the fine so imposed an amount, not in excess of one-half thereof, for the use of the informer, if any, who shall be ascertained by the judgment of the court. The court also shall render judgment against the said officer or employee for the amount of damages sustained in favor of the party injured, to be collected by execution. Aggressive forensic accounting will soon likely show that the IRS has likely

never assessed any individual and the so-called Department of Justice has, thus, likely

never legally prosecuted any individuals accused of a tax infraction.

Conclusion and prayer for relief

10. Whereas this court has duty to make inquiry into the evidence file of CR-

97-042-S-EJL; and whereas this court shall notice that the evidence file is tainted with

fabricated evidence, this court’s non-discretionary duty is to vacate the judgment in CR-

042-S-EJL and order return of all sums taken from Douglas J. Fortune together with

compensation for time imprisoned.

Prepared and submitted by: ____________________________________ Douglas J. Fortune

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AFFIDAVIT

I, Douglas J. Fortune, of lawful age and competent to testify, after having

been duly sworn, state as follows based on my own personal knowledge:

1. I am not in receipt of any document which verifies that I am a taxpayer

owing a tax to the United States Treasury.

2. I am in receipt of a large volume of documents produced via a freedom

of information act request purporting to the foundation of evidence used to

convict me. After laborious, diligent, and thorough examination of these

documents, I found no single item save for my social security number that was a

corollary to the alleged evidence used against me. It is fact, not opinion, that the

foundation documents are either intentionally obfuscated or totally fabricated.

___________________________ Douglas J. Fortune

STATE OF IDAHO INDIVIDUAL ACKNOWLEDGMENT

COUNTY OF ________________

Before me, the undersigned, a Notary Public in and for said County and State, on

this ____ day of ________, 2002, personally appeared __________________________

to me known to be the identical person who executed the within and foregoing instrument

and acknowledged to me that he executed the same as his free and voluntary act.

Given under my hand and seal the day and year last above written.

My commission expires __________ ________________________ Notary Public

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What about where the IRS has stolen your property?

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

Lancelot DuLang, ) ) Plaintiff, ) ) vs. ) Case No. _____________ ) The United States of America, ) ) Defendant. ) ____________________________________) Lancelot DuLang’s petition, complaint and claim to quiet title under authority of 28 USC

2410 / mandatory judicial notice, Federal Rules of Evidence Rule 201

1. The United States of America has a putative claim to property rightfully

belonging to Lancelot DuLang. The property in question is legally described as the

Northwest ¼ of the Southwest ¼ of Section 23, Township 10 North, Range 11 West of

the Indian Meridian in Caddo County, Oklahoma. The putative claim of the United States

of America arises under the internal revenue laws. The putative claim is against alleged

taxpayer “Lancelot DuLang” who resides at Rt. # 1, Box 60, Union City, Oklahoma,

73090.

2. The claim of the United States of America was procured by fraud perpetrated

by Donald N. Dowie, Jr. The record verifies criminal misconduct by Donald N. Dowie,

Jr., as Donald N. Dowie, Jr., advanced writings which Donald N. Dowie, Jr., knew were

false with the intention that Lancelot DuLang and certain officers and officials of the

United States of America rely on the false writings of Donald N. Dowie, Jr., to deprive

Lancelot DuLang of money, property, or rights.

Before the Internal Revenue Service or the so-called United States Department of

Justice is lawfully authorized to take so much as even one federal reserve note from

any person, the IRS must make of notice of and record a procedurally proper,

lawful assessment, IRS form 23-C, summary record of assessment

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(What information goes here?)

It is unlawful and a felony for an agent of the Internal Revenue Service, such

as a so-called United States Department of Justice attorney, to ask for or

demand a sum greater than or different from that appearing on a

procedurally proper, lawful assessment.

(What information should be inserted here?)

Criminals, like Donald Donald N. Dowie, Jr., claim that other materials such

as a “RACS 006” are evidence of an assessment relying on authorities: United States

v. Jones, 958 F.2d 520 (2d Cir. 1992), United States v. Hayes, 861 F.2d 1225 (10th Cir.

1988), United States v. Bowers, 920 F.2d 220 (4th Cir. 1990), and United States v. Neff,

615 F.2d 1235 (9th Cir. 1980). Forensic audit of the Internal Revenue Service

established that agents like Donald N. Dowie, Jr., routinely commit heinous crimes

against people like Lancelot DuLang

This court is noticed: the putative evidence used in 97-CV-1819 C was derived

from the same records investigated in the forensic accounting report - the records relied

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on by the court were FRAUD FABRICATED BY DONALD N. DOWIE, JR., AND

PATRICK RYAN.

Donald N. Dowie, Jr., is nothing in the world but a common criminal.

6. Oklahoma Statutes, Title Twenty-one, Crimes and Punishments, Chapter

thirteen, Section four hundred fifty-three: False Preparation of Exhibits as Evidence.

“Any person guilty of falsely preparing any book, paper, record, instrument in writing, or

other matter or thing, with intent to produce it, or allow it to be produced as genuine upon

any trial, proceeding or inquiry whatever, authorized by law, shall be guilty of a felony.”

It is immaterial whether Donald N. Dowie, Jr., actually knew that the evidence he used

was false. A conviction obtained by the knowing use of false or perjured testimony is

fundamentally unfair, and must be set aside if there is any reasonable likelihood that the

false testimony could have affected the judgment of the jury, United States v. Agurs, 427

U.S. 97, 103, 49 L.Ed. 2d 342, 96 S.Ct. 2392 (1976). It is immaterial that the particular

prosecutor in this case may not have known about the evidence that revealed testimony as

possibly false. The Justice Department’s various offices ordinarily should be treated as

an entity, the left hand of which is presumed to know what the right hand is doing,

Giglio v. United States, 405 U.S. 150, 154, 31 L.Ed. 2d 104, 92 S.Ct. 763 (1972). The

function of the United States Attorney’s Office is not merely to prosecute crimes, but also

to make certain that the truth is honored to the fullest extent possible during the course of

the criminal prosecution and trial. The criminal trial should be viewed not as an

adversarial sporting contest, but as a quest of truth. See Brennan, The Criminal

Prosecution: Sporting Event or Quest for Truth? 1963 Wash. U.L.Q. 279. The

government is precluded from using evidence that is known to the government to be

false, Napue v. Illinois, 360 U.S. 264, 269, 3 L.Ed. 3d 1217, 79 S.Ct. 1173 (1959). The

principle of not allowing the knowing use of false testimony does not cease to apply

merely because the false testimony goes only to the credibility of the witness, Napue

supra. We agree with Justice (then Judge) Stevens that the assertions made by the

government in a formal prosecution (and, by analogy, a formal civil defense) establish

the position of the United States and not merely the views of its agents who participate

therein, United States v. Powers, 467 F.2d 1089, 1097 n.1 (7th Cir. 1972)

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Mandatory judicial notice

7. This court is noticed Lancelot DuLang has had property taken away and

property encumbered by frauds perpetrated by Donald N. Dowie, Jr.

Conclusion

8. The rule of law requires ending of the trespass by the Internal Revenue Serivce

on the property of Lancelot DuLang, ordering the Internal Revenue Service to leave

Lancelot DuLang alone forever, returning all that has been taken from Lancelot DuLang,

and remand of Donald N. Dowie, Jr., to other authorities for preference of criminal

charges.

Prepared and submitted by: _________________________________ Lancelot DuLang Route 1, Box 60 Union City, Oklahoma 73090

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What if the IRS and their stooges, the judges, call you names?

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE Charles Dickens ) and ) Samantha Dickens, ) a married couple, ) ) Plaintiffs, ) ) vs. ) Number ___________________ ) David A. Brown, ) an individual, ) and ) Lacy H. Thornburg, ) an individual, ) ) Defendants ) ______________________________)

Petition, complaint, and claim in the nature of a complaint for libel, slander, and

defamation resulting in deprivation of the right to work, loss of affection, emotional anguish, and false imprisonment. This court has jurisdiction

under authority of 28 USC 1332

Jurisdictional statement

1. Charles Dickens and Samantha Dickens, citizens of Tennessee, are domiciled

in the middle federal district of Tennessee and maintain a residence at 1234 Butcher

Hollow Road in Fairmont, Tennessee. David A. Brown, a citizen of Maryland, is

domiciled in Maryland, maintaining a residence at 88 Clueless Lane, Scum Villa,

Maryland, and Lacy H. Thornburg is a citizen of Maryland, and is domiciled in

Maryland, residing at Gestapo Street, Blue Sky, Maryland, resulting in complete diversity

of citizenship.

2. Libel, slander, defamation, deprivation of the right to work, loss of affection,

emotional anguish, and false imprisonment are all claims cognizable under Tennessee

law.

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Cause of action

3. Lacy H. Thornburg and David A. Brown, repeatedly, in publication and orally,

referred to Charles Dickens as an “illegal tax protestor” or words, unmistakable in

meaning, to that effect. Thornburg and Brown are charged with a duty to know the law

and therefore knew or should have known the term “illegal tax protestor” or any similar

designation has been banned and is not only forbidden for use, but removed from

government files. Thornburg and Brown’s use of “illegal tax protestor” and similar

designations caused Charles Dickens to be portrayed in a false light publicly and yielded

“fruit of the poisoned tree” by literally poisoning minds against Charles Dickens in

proceedings where tax issues were not even germane; then, the mischief of Thornburg

and Brown resulted in the false imprisonment of Charles Dickens, depriving Charles

Dickens of right to enjoy the fruits of honest labor, depriving Charles Dickens and

Samantha Dickens of the joys and triumphs of a life together, and subjecting both Charles

Dickens and Samantha Dickens to emotional anguish.

Claim of damages and remedy sought

4. The unlawful misconduct of Lacy H. Thornburg and David A. Brown has

resulted in damages so great, no sum seems likely to compensate Charles Dickens and

Samantha Dickens equitably for the trespass on the Dickens’ most sacred and

fundamental rights. Charles Dickens and Samantha Dickens, having a passion for justice

and fairness, set aside all theories of damages in favor of a jury’s determination of what

amount would be sufficient to amend the bad behavior of Lacy H. Thornburg and David

A. Brown.

TRIAL BY JURY DEMANDED

Prepared and submitted by: ______________________________________________

Charles Dickens Samantha Dickens

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SECTION NINE: CIVIL RICO – The ultimate weapon

C I V I L R. I. C. O.

The federal district courts have jurisdiction under CR to order any person to divest himself of

any interest, direct or indirect, in any enterprise; imposing reasonable restrictions on the future

activities or investments of any person, including, but not limited to, prohibiting any person from

engaging in the same type of endeavor as the enterprise engaged in, the activities of which affect

interstate or foreign commerce; or ordering dissolution or reorganization of any enterprise. Any

person injured in his business or property by reason of a violation of section 1962 of this chapter may

sue, therefore, in any appropriate United States district court and shall recover threefold the damages

he sustains and the cost of the suit. Because the language of the Racketeer Influenced and Corrupt

Organizations Act authorizing suit by any person injured in his business or property by reason of

violation of the Act tracks section 4 of the Merryweather Act, rules established in antitrust cases for

identifying proper complaints should be applied to RICO, too. Both requirements of Rule mandating

particularity in pleading of fraud and liberal notice pleading philosophy of federal rules apply to

RICO claims based upon fraud. Congress intended the RICO Act’s civil remedies to help eradicate

organized crime from the social fabric by divesting associations of fruits of ill-gotten gains. The

primary intent of Congress was to combat infiltration of organized crime into legitimate businesses

operating in interstate commerce. Civil RICO is remedial rather than punitive. In order to state a

claim for treble damages as result of injury to business or property, plaintiff in a RICO action must

(1) prove RICO violation, (2) prove injury to business or property, and (3) that the violation caused

the injury. Additionally, plaintiff must prove (1) existence of enterprise which affects interstate

commerce, (2) that defendant was employed by or associated with the enterprise, (3) that defendant

participated in the conduct of the enterprise’s affairs, and (4) that the participation was through a

pattern of racketeering activity. Elements essential to CR are (1) existence of RICO enterprise, (2)

existence of pattern of racketeering activity, (3) nexus between defendant, pattern of RICO activity or

RICO enterprise, and (4) resulting injury to plaintiff in his business or property. Plaintiff must

demonstrate that he sustained injury as proximate result of one or more predicate acts constituting

pattern. Plaintiff must allege that defendant, through commission of two or more acts, constituting

pattern of racketeering activity, directly or indirectly invested in, or maintained an interest in, or

participated in an enterprise affecting interstate commerce. Plaintiff must allege injury flowing from

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commission of predicate acts, which means that recovery must show some injury flowing from one

or more predicate acts: plaintiff cannot merely allege that act of racketeering occurred and he

lost money. Plaintiff must show how violation caused injury and in conjunction with RICO

prohibitions stated in 18 USC 1962 (which centers on actions conducted through pattern of RICO

activity by reason of requirement effectively forces civil RICO plaintiff to demonstrate that predicate

act alleged for purposes of making out violation of 1962 resulted in direct harm). Causal connection

between injury and alleged acts of RICO activity is a requirement of standing under RICO. Injury

must be caused by a pattern of RICO activity or by individual RICO predicate acts. Pattern or acts

must proximately cause the injury. There must be a direct relationship between plaintiff’s injury and

plaintiff’s conduct (as in plaintiff relying on). The test for proximate cause is reasonably foreseeable

or anticipated as natural consequence. A CR cause of action does not require prior criminal

conviction, relationship to organized crime, or proof of injuries outside those caused by the predicate

acts. To prove that enterprise existed within meaning of RICO, plaintiffs must present evidence of

ongoing organization and evidence that various associates functioned as a continuing unit. RICO

plaintiff must establish that defendant has received money from pattern of RICO activity and has

invested that money in enterprise affecting interstate commerce. Showing injury requires proof of

concrete financial loss. Loss cannot be intangible. Lost profit is an injury cognizable within CR. No

particular RICO injury need be proven to maintain a CR. Plaintiffs must prove criminal conduct in

violation of RICO injured business or property. Liability attaches where injury is direct or indirect

result; however, standing requires direct injury. Lost opportunity must be concrete injury, meaning

not speculative. CR does not apply to personal injuries. Plaintiff need only establish that predicate

acts were proximate cause of injury. Plaintiffs are not required to show nexus between defendants

and organized crime. Plaintiffs must show (1) at least two predicate acts, (2) that predicates were

related, and (3) that defendants pose a threat of continued criminal activity. Cardinal question is

whether defendants have committed one of enumerated acts under 18 USC 1961. Relying on a fraud

to one’s detriment and resulting injury to property or business is injury cognizable within CR.

Communicating misrepresentations to the effect that the party relying on the misrepresentations loses

money or property is injury. Injury caused by reliance on fraud is injury. Corporation may be liable

where its officers conduct affairs of corporation in a manner which violates 1961. Vicarious liability

is not a proper basis for finding under CR. Aiding and abetting is sufficient nexus under CR,

especially if knowingly, intentionally or recklessly assisting. To hold defendant liable for mail fraud,

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RICO plaintiff need not be primary victim, but only intended victim. Claim cannot be maintained

against a municipal corporation. State courts have concurrent jurisdiction over CR claims. CR =

four year statute of limitations. Plaintiff must bring action within four years of discovery.

Defendant’s plea of guilty waives right to assert any statute of limitations. Fraud must be pled with

particularity. Standard of proof is preponderance of the evidence. Question of whether plaintiff’s

business or property was injured is question of law for the court, taking into consideration such

factors as foreseeability of particular injury, intervention of independent causes and factual directness

of causal connection. There are elements that must be pled before plaintiff may avail himself of

enhanced damages: (1) two predicate acts, (2) which constitute a pattern of racketeering activity, (3)

directly participating in the conduct of an enterprise of (4) activities that affect interstate commerce,

and (5) that plaintiff was injured in business or property. There is no right of contribution under civil

liability provision of RICO Act. Declaratory nor injunctive relief are available under CR. Each

element of RICO violation and its predicate acts must be alleged with particularity. To state a claim

under CR, there must be a person, enterprise, and pattern of racketeering activity. Plaintiffs must

show a nexus between control of enterprise, RICO activity, and injury. Complaint must allege: (1)

existence of enterprise affecting interstate commerce, (2) that defendant participated directly or

indirectly in the conduct or affairs of the enterprise, and (3) defendant participated through a pattern

of racketeering activity that must include the allegation of at least two racketeering acts. A necessary

ingredient of every successful CR claim is an element of criminal activity. Bare allegation of

violation in conjunction with equally inadequate factual allegations are insufficient to state a CR

claim. CR claim must adequately allege that scheme of fraud would have foreseeable result and

continuity or threat of continuing racketeering acts. Enterprise as defined in CR is: (1) identified

formally or informally, and (2) common purpose of making money from fraud schemes. Referring to

entity as both enterprises and person does not defeat CR in spite of requirement of (1) identifying a

persons and a (2) separate enterprise. Enterprise can be association-in-fact. Plaintiff must show how

person’s criminal conduct enables obtaining an interest or control of the enterprise. Homeowners

who alleged that real estate developer had conducted racketeering enterprise in which he

misled them into purchasing home they could not afford, by fraudulently asserting that homes

would be entitled to various tax abatements and mortgage credit certificates, and that title

companies and mortgage lenders had conspired with developer to defraud homeowners and

realize maximum profits, claimed injuries directly attributable to developer’s alleged

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substantive violations of Racketeer Influenced and Corrupt Organizations Act, and thus could

maintain civil RICO conspiracy claims against title companies and mortgage lenders, even if

title companies and lenders did not manage corrupt enterprise, Smith v. Berg, C.a. 3 (Pa.) 2001,

247 F.3d 532. Plaintiff must show investment of money or property obtained by criminal activity

from plaintiff used in enterprise involved in interstate commerce. Alleged fraud must include

information that a reasonable person could deduce that “person” (1) had actual knowledge of falsity

and strong inference of (2) intent. Scienter of adequately alleged intent is (1) acting with intent to

defraud OR willful and reckless disregard for plaintiff’s interests. Allegations that lenders forced

borrowers to sign blank and incomplete documents, which were later altered to reflect greater

debt repayment obligations and which obligated borrowers to pay more money that they owed

and to make all repayments at higher interest rate went beyond mere hard bargaining and

were sufficient to state RICO claim based on extortion, Center Cadillac, Inc. v. Bank Leumi

Trust Co. of New York, S.D.N.Y. 1992, 808 F. Supp. 213, affirmed 99 F.3d 401. Failing to allege

that defendant was affiliated with or engaged in organized crime is not fatal to CR claim. Sufficiency

of pleading of RICO conspiracy claim is not subject to higher pleading standard of civil rule for fraud

claims. In order to sufficiently allege a conspiracy, a party must allege two acts of racketeering with

enough specificity to show there is probable cause to believe that crimes were committed. Although

rule that fraud must be pled with particularity requires that plaintiff in a suit brought under RICO

provide only a general outline of the alleged fraud scheme, sufficient to reasonably notify the

defendants of their purported role in the scheme, the complaint must, at minimum: (1) describe the

predicate acts with some specificity, and (2) state the time, (3) place, (4) content of the alleged

communications perpetrating the fraud, and (5) identity of party perpetrating a fraud. Fraud

allegations are sufficient for purpose of stating CR claim if they place the defendant on notice of

precise misconduct. Claim must be made that defendant actually made false statements. To state a

claim, the “continuity plus relationship standard” must be met. Pattern of racketeering activity means

a nexus between the affairs of the enterprise and the RICO activity. There must be a threat of future

activity. Continuity means “regular way of doing business.” To satisfy the “pattern prong” requires

that acts be related. Actual fraud and not constructive fraud must be shown.

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

George Orwell, Sr., an individual, ) and ) George Orwell, Jr., an individual, ) ) Plaintiffs, ) ) v. ) Number ________________ ) The American Bar Association, A ) private business Organization and ) enterprise Domestic to Illinois, ) Ex rel., ) Alfred P. Carlton, Jr., ) Frederick Turner, Jr., ) Paul W. Lamar, ) Thomas H. Sutton, ) Larry O. Baker, ) James M. Wextten, ) Charles L. P. Flynn, ) Thomas M. Welch, ) Richard P. Goldenhersh, ) Terrence J. Hokins, ) and ) Robert Lewis, ) ) Defendants. ) ______________________________)

Petition, complaint, and claim in the nature of a suit for civil remedy under

authority of 18 USC 1964(a) “CIVIL RICO”

1. George Orwell, Sr., an individual domiciled in the Southern Federal District of

Illinois at Rt.1, Box 59-C, Roseville, Illinois 62000. George Orwell, Jr., is a married

individual domiciled in the Southern Federal District of Illinois at Rt.1, Box 59-C,

Roseville, Illinois 62000. Together, the Orwells do business as “Orwells’ Future Picks.”

2. The American Bar Association is an association headquartered in the State of

Illinois at 750 North Lakeshore Drive, Chicago, Illinois 60611, and, as such, has capacity

163

to be sued – see Illinois Court Rules and Procedure 5/2-209.1, and is subject to notice and

opportunity via U.S. Mail certified, return receipt requested – see Section ILCS 2-205.1.

3. Alfred P. Carlton, Jr., is the president of the American Bar Association and

Frederick Turner, Jr., Paul W. Lamar, Thomas H. Sutton, Larry O. Baker, James M.

Wextten, Charles L. P. Flynn, Thomas M. Welch, Richard P. Goldenhersh, Terrence J.

Hokins, and Robert Lewis participate in the operations of the enterprise American Bar

Association. A jury shall determine membership in the association grants members

privileges, including license to violate 18 USC 1961 and 18 USC 1962 with absolute

impunity where only other enterprise members review member misconduct.

Affidavit of George Orwell, Sr.

I, George Orwell, Sr., of age and competent to testify state as follows based on

my own personal knowledge:

(a). Between September 15th, 2000, at 11:00 A.M., and October the 13th, 2000,

Thomas H. Sutton violated 18 USC 1961 and 18 USC 1962 by intelligently crafting a

materially false document with the intention that I rely on the document to my detriment.

The effect of Sutton’s false document was to deprive me of a large sum of money and to

coincidentally interfere with my business enterprise.

(b). June 28th, 2000, Thomas H. Sutton, aided and abetted Charles L. P. Flynn in

the preparation and submission of false documents with the intent that I rely on the false

documents to my detriment. The effect of Flynn’s false documents was to deprive me of

a large sum of money and to coincidentally interfere with my business enterprise.

(c). Beginning September 13th, 2000, and culminating about October 10th, 2000,

Sutton intelligently crafted false and fraudulent documents with the intention that I rely

on the frauds to my detriment. The effect of Sutton’s false documents was to deprive me

of a large sum of money and to coincidentally interfere with my business enterprise.

(d). September 15th, 2000, Mr. Sutton uttered fraud with the intent that I rely on

the fraud to my detriment. The effect of Sutton’s false document was to deprive me of a

large sum of money and to coincidentally interfere with my business enterprise. This

fraud of Mr. Sutton’s was aided and abetted by Frederick Turner, Jr.

(e). November 1st, 2002, Robert Lewis, a.k.a. Robert Wayne Lewis, committed

fraud by simply lying about the contents of a public record. Mr. Lewis’ intention was to

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deprive me of property and business interest by expecting me to rely on his false

statement regarding the record. The effect of Lewis’ false document was to deprive me

of a large sum of money and to coincidentally interfere with my business enterprise.

(f). January 28th, 2002, Robert Lewis lied about the contents of a certain public

record. Mr. Lewis’ intention was to deprive me of property and business interest by

expecting me to rely on his false statement regarding the record. The effect of Lewis’

false document was to deprive me of a large sum of money and to coincidentally interfere

with my business enterprise.

(g). December 2nd, 2002, Frederick Turner, Jr., uttered a false and fraudulent

document with the intension that I rely on the false document to my detriment. The

effect of Turner’s false document was to deprive me of a large sum of money and to

coincidentally interfere with my business enterprise.

(h). Subsequent to December 16th, 2002, Thomas M. Welch, Richard P.

Goldenhersh, and Terence J. Hokins aided and abetted frauds committed by Frederick

Turner, Jr. The effect of Welch, Goldenhersh, and Hokins’ cover-up was to deprive me

of a large sum of money and to coincidentally interfere with my business enterprise.

(i). October 11th, 2002, Frederick Turner, Jr., fabricated three false documents,

commonly known as a “pack of lies,” with the intent that I would rely on the document to

by detriment. The effect of Turner’s cover-up was to deprive me of a large sum of

money and to coincidentally interfere with my business enterprise.

(j). January 30th, 2001, Frederick Turner, Jr., composed a false document with the

intention that I would rely on it to my detriment. The effect of Turner’s falsehood was to

deprive me of a large sum of money and to coincidentally interfere with my business

enterprise.

(k). As a result of the frauds committed or aided and abetted by Frederick Turner,

Jr., Paul W. Lamar, Thomas H. Sutton, Larry O. Baker, James M. Wextten, Charles L.

P. Flynn, Thomas M. Welch, Richard P. Goldenhersh, Terrence J. Hokins, and Robert

Lewis, I have been defrauded of business and property interest of not less than five

hundred fifty-thousand dollars, ($550,000.00).

__________________________________ George Orwell, Sr.

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On the _______ day of _______________ of 2003, before me, appeared George Orwell, Sr., personally known to me, or presented satisfactory evidence to be the Secured-Party in the above instrument. Witness my hand and seal Notary signature _________________________________ My commission Expires _____________________

Affidavit of George Orwell, Jr.

I, George Orwell, Jr, of age and competent to testify state as follows based on my

own personal knowledge:

(a). I am in business with George Orwell, Sr.

(b). As a result of the frauds committed or aided and abetted by Frederick Turner,

Jr., Paul W. Lamar, Thomas H. Sutton, Larry O. Baker, James M. Wextten, Charles L. P.

Flynn, Thomas M. Welch, Richard P. Goldenhersh, Terrence J. Hokins, and Robert

Lewis, affecting George Orwell, Sr., I have been defrauded of business and property

interest of an indeterminable amount.

__________________________________ George Orwell, Jr.

Rt-1, Box 63 Roseville, Illinois 62000 (618) BR549

On the _______ day of _______________ of 2003, before me, appeared George Orwell, Jr., personally known to me, or presented satisfactory evidence to be the Secured-Party in the above instrument. Witness my hand and seal Notary signature ______________________________________ My commission Expires _____________________

166

Plaintiffs’ RICO case statement detailing the racketeering enterprise, the predicate acts of racketeering, and the economic purpose

4. The American Bar Association is literally running a racket by conducting

“proceedings” not cognizable within the Federal Rules of Civil Procedure or any state’s

rules of civil procedure, resulting in countless void judgments. George Orwell, Sr., is

among those victimized and dares to stand up to the corruption and monstrous evil of a

system of law and justice taken over and run as a commercial enterprise dedicated to

control the marketplace of something referred to as the “practice of law.” “I feel as

though the lawyers of this country are like passengers on the Titanic . . . the music is

playing and the champagne glasses are tinkling, yet . . . practitioners in their momentary

bliss are oblivious to the [icebergs] ahead.” – Altman and Weil, national law firm

consultants. “Our profession faces quantum change. I believe lawyers are like the great

buffalo herds of the 1800’s, locked in stampedes for extinction. Is the cliff two years

away or five? . . . I believe at least six out of 10 American lawyers will go over the cliff.”

– Charlie Robinson, futurist and attorney. In today’s America, there are way too many

attorneys! Many, like the respondents in this case, have to resort to a life of crime to

make a living. Although George Orwell, Sr., has clearly articulated an economic motive

by members of the enterprises, the bars, an economic-motive requirement is not

absolutely necessary to state a civil RICO claim. See National Organization for Women,

Inc. v. Scheidler, 510 U.S. 249, 114 S.Ct. 798, 127 L.Ed. 99 (US 01/24/1994). This court

shall notice that George Orwell, Sr., in his complaint has testified of injury to property

and business by reason of acts which violate section 4 of the Clayton Act, in as much as

all actors clearly articulated that only the bars had standing in their courts. Attick v.

Valeria Associates, L.P., S.D. N.Y. 1992, 835 F. Supp. 103. George Orwell, Sr., has

articulated violation of racketeering laws, testified that the violation injured both business

and property warranting treble damages, Avirgan v. Hull, C.A. 11 (Fla.) 1991, 932 F.2d

1572. In naming the bar to which all actors belong, George Orwell, Sr., has established

that an enterprise exists, which undeniably affects interstate commerce, Yellow Bus Lines,

Inc. v. Drivers, Chauffeurs & Helpers Local Union 639, C.A.D.C. 1990, 913 F.2d 948,

286 U.S. App. D.C. 182, certiorari denied 111 S.Ct. 2839, 501 U.S. 1222, 115 L.Ed. 2d

1007. George Orwell, Sr., has standing to sue under RICO as he has shown violation of

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RICO, injury to business and property, and causation of the injury by the violation, Hecht

v. Commerce Clearing House, Inc., C.A. 2 (N.Y.) 1990, 897 F.2d 21, 100 A.L.R. Fed.

655. George Orwell, Sr., has perfected a RICO claim by showing the existence of a

RICO enterprise = the bar, showing a pattern of racketeering activity fraud (see

affidavits), shown nexus between the defendents and the pattern of frauds, and shown

resulting injury to business and property, Standard Chlorine of Delaware, Inc. v.

Sinibaldi, D.Del. 1992, 821 F.Supp. 232. George Orwell, Sr., has demonstrated that he

sustained injury as proximate result of the pattern of frauds by the defendants, Jordan v.

Herman, F.D. Pa. 1992, 792 F. Supp. 380. The defendants required membership in the

enterprise, the bar, to be privileged to do bar business, both direct and indirect

investment, by the members in the bar’s enterprise affecting interstate commerce,

Nassau-Suffolk Ice Cream, Inc. v. Integrated Resources, Inc., S.D.N.Y. 1987, 114 F.R.D.

684. George Orwell, Sr., clearly articulated being defrauded of a large sum of money and

business losses, Polletier v. Zweifel, C.A. 11 (Ga.) 1991, 921 F.2d 1465, rehearing denied

931 F.2d 901, certiorari denied 112 S.Ct. 167, 502 U.S. 855, 116 L.Ed. 131. The cause-

in-fact that but-for the chicanery of the bar members, George Orwell, Sr., would have his

money and his business would not have incurred tangible losses is sufficient to state

factual causation for provision of RICO act providing for treble damages, Khurana v.

Innovative Heath Care Systems, Inc., C.A. 5 (La.) 1997, 130 F.3d 143, vacated 119 S.Ct.

442, 525 U.S. 979, 142 L.Ed. 2d 397, on remand 164 F.3d 900. George Orwell, Sr.’s

reliance on traditional principles of proximate causation applying to RICO cases is

illustrated in the well pleaded, un-rebutted testimony that he was defrauded of his money

and his business interfered with by predicate acts of the defendants, In re American

Honda Motor Co., Inc. Dealership Relations Litigation, D.Md. 1996, 941 F.Supp. 528.

There exists an un-denied relationship between the acts of the defendant and the damage

to property and business interests of the Orwells, Red Ball Interior Demolition Corp. v.

Palmadessa, S.D.N.Y. 1995, 908 F.Supp. 1226. The damage caused by the defendants

was the natural and reasonably foreseeable consequence of the frauds promulgated by the

defendants, Protter v. Nathan’s Famous Systems, Inc., E.D. N.Y. 1995, 904 F.Supp. 101.

The fraud by the defendants was the legal cause of George Orwell, Sr., being defrauded,

his business interests interfered with, and related damages, Prudential Ins. Co. of

168

America v. U.S. Gypsum Co., D.N.J. 1993, 828 F.Supp. 287. The enterprise the bar is

evident to a high degree and it is also evident to a high degree that associates such as the

members act as a continuing unit. In actuality, the bar is the best example anyone could

possibly conceive of as a racketeer influenced corrupt organization. Compagnie de

Reassuarance D’lle de France v. New England Reinsurance Corp., D. Mass. 1993, 825

F.Supp. 370. It is undeniable that the bar associates received money for defrauding

George Orwell, Sr., and their payments under and over the table to the bar officers

represents their necessary investment in the bar for the continuing privilege of, in the

vernacular, continuing to rip people off in phony, out of court proceedings. Grand Cent.

Sanitation, Inc. v. First Nat. Bank of Palmerton, M.D.Pa. 1992, 816 F.Supp. 299.

Undeniably, the defendants have usurped the courts and used the courts for purposes of

fraud and extortion – George Orwell, Sr., is but one of millions of examples of fraud by

the bar mentality of “Constitution? What Constitution? They really ain’t no law ‘cept the

law we makes up as we goes along so we can rob people.” Randolph County Federal

Sav. & Loan Assoc. v. Sutliffe, S.D. Ohio 1991, 775 F. Supp. 1113. Where persons

arrange to fix contests, claim for civil RICO rises. Venzor v. Gonzalez, N.D. Ill. 1996,

936 F. Supp. 445. No particular RICO injury need be proven to maintain a civil RICO

action. Miller v. Affiliated Financial Corp. N.D. Ill. 1984, 600 F.Supp. 987. A showing

of competitive injury is not required before a civil claim under RICO can be stated.

Yancoski v. E.F. Hutton & Co. Inc., F.D. Pa. 1983, 581 F.Supp. 88. Commercial loss is

not required for recovery of damages under this section. Gitterman v. Vitoulis, S.D. N.Y.

1982, 564 F.Supp. 46. Plaintiff in racketeering action need only establish that predicate

acts were proximate cause of injury. Minpeco, S.A. v. Hunt, S.D.N.Y. 1989, 718 F.Supp.

168. Relying on communicated misrepresentations, like the false documents advanced

by Frederick Turner, Jr., Paul W. Lamar, Thomas H. Sutton, Larry O. Baker, James M.

Wextten, Charles L. P. Flynn, Thomas M. Welch, Richard P. Goldenhersh, and Terrence

J. Hokins, caused a loss sufficient to state a claim under RICO. Florida Dept. Ins. V.

Debenture Guar., M.D. Fla. 1996, 921 F.Supp. 750. Aiding and abetting such, as clearly

articulated in respect of some of the respondents, warrants liability under RICO. In re

Sahlen & Associates, Inc. Securities Litigation, S.D. Fla.1991, 773 F.Supp. 342.

Standing is conferred on a RICO where plaintiff’s business or property has been injured

169

by reason of conduct constituting a RICO violation. Buck Creek Coal, Inc. v. United

Workers of America, S.D. Ind. 1995, 917 F.Supp. 601. To state a RICO claim, private

plaintiff must allege that he suffered an injury in his business or property by reason of a

violation of the Act. In re Phar-Mor, Inc. Securities Litigation, W.D. Pa. 1994, 900

F.Supp. 777. Proof by a preponderance of the evidence is sufficient to finding of liability

in a civil RICO action. Liquid Air Corp. v. Rogers, C.A. 7 (Ill.) 1987, 834 F.2d 1297.

George Orwell, Sr., has testified that the defendants committed or aided and abetted two

or more acts of fraud, which were part of a pattern of racketeering activity by direct

participants in an enterprise affecting interstate commerce and that they were injured in

their property and business interests. Poeter v. Shearson Lehman Bros. Inc., S.D. Tex.

1992, 802 F.Supp. 41. George Orwell, Sr., has testified that the defendants

misrepresented material facts with deliberate disregard of truth. Guiliano v. Everything

Yogert, Inc., E.D. N.Y. 1993, 819 F.Supp. 626. George Orwell, Sr., has testified that the

defendant acted with reckless disregard for George Orwell, Jr.’s interests, adequately

alleging intent under RICO. Babst v. Morgan Keegan & Co., E.D. La. 1988, 687

F.Supp. 255. Civil RICO complaint identified alleged predicate acts with sufficient

particularity, where complaint not only specified the type of predicate acts committed,

including extortion, but identified approximate date, participants, victims, and general

methods by which acts were committed. U.S. v. Gigante, D.N.J. 1990, 737 F.Supp. 292.

Plaintiffs who file civil actions under RICO Act need not present allegations as specific

as criminal bill of particulars, nor establish probable cause to believe that defendant

committed predicate racketeering offenses. Frank E. Basil, Inc. v. Leidesdorf, N.D. Ill.

1989, 713 F.Supp. 1194. Sufficiency of pleading of RICO conspiracy claim is not

subject to higher pleading standard of civil rule for fraud claims. In re Crazy Eddie

Securities Litigation, E.D. N.Y. 1990, 747 F.Supp. 850. A claim that the bar’s bad

behavior is not regular, ongoing and likely to recur is absurd. Extortionate conduct, well

documented as the way the bar conducts business poses a threat of continuing

racketeering activity. O’Rourke v. Crosley, D.N.J. 1994, 847 F.Supp. 1208.

170

Remedy sought and prayer for relief

5. The Federal District Court has a duty to order the dissolution of enterprises

determined to be in contravention of laws articulated at 18 USC 1961, 18 USC 1962, and

18 USC 1964(a).

6. The Federal District Court is empowered to order treble damages as remedial

to the racketeering activities of “RICO” enterprises and their constituent members.

7. A jury’s determination that the American Bar Association has engaged in a

pattern of frauds rising to a level of racketeering requires this court’s order to the

American Bar Association to dissolve and cease operations.

8. A jury’s determination that Frederick Turner, Jr., Paul W. Lamar, Thomas H.

Sutton, Larry O. Baker, James M. Wextten, Charles L. P. Flynn, Thomas M. Welch,

Richard P. Goldenhersh, Terrence J. Hokins, and Robert Lewis are members of the

enterprise American Bar Association, and as such, committed or aided and abetted two or

more predicate acts of fraud resulting in defrauding George Orwell, Sr., of property and

business interests justly requires compensating George Orwell, Sr., and George Orwell,

Jr., in a sum not less than one million, six hundred fifty thousand dollars ($1,650,000.00).

JURY TRIAL DEMANDED

Prepared and submitted by: _________________________________________________ George Orwell, Sr. George Orwell, Jr.

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SECTION TEN: Strategies

Supremacy and equal protection of the law

SUPREMACY

The supremacy clause, United States Constitutional Article VI declares that all

laws made in pursuance of the Constitution and all treaties made under the authority of

the United States shall be the supreme law of the land and shall enjoy legal superiority

over any conflicting provision of a State constitution or law.

EQUAL PROTECTION

That provision in the 14th Amendment which prohibits a State from denying to

any person within its jurisdiction the equal protection of the laws. This clause requires

that persons under like circumstances be given equal protection in the enjoyment of

personal rights and the prevention and redress of wrongs.

Affidavits

When composing affidavits, make either short, positive statements of fact or

negative averments. Place the burden of proof on them. Don’t cite authorities or

incorporate materials by reference unless you prepared the referenced material and it is

signed and dated. Do not make a statement like, “I am not a taxpayer” – that’s an

opinion. Instead state, “I am not in receipt of any document which verifies that I am a

taxpayer owing a tax to the treasury” – that’s a fact!

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IN THE DISTRICT COURT OF OKLAHOMA COUNTY STATE OF OKLAHOMA

SHAMEFUL SHAM CORP., ) Plaintiff and defendant on ) counterclaim, ) ) vs. ) Case No. CS 0000 ) Timothy Goodspeed, ) Defendant and ) counterclaimant, ) ____________________________________)

AFFIDAVIT I, Timothy Goodspeed, of lawful age and competent to testify state as follows based on my own personal knowledge: 1. I am not in receipt of any document which verifies that I have a contract with Shameful Sham Corporation. 2. I am not in receipt of any document which verifies that I owe Shameful Sham Corporation money. 3. I am not in receipt of any document which verifies that Shameful Sham Corporation authorized suit against me or is even aware of it. 4. As the result of Dewey Cheatum’s pattern of acts against me, I have been damaged financially, socially, and emotionally.

___________________________ Timothy Goodspeed

STATE OF OKLAHOMA INDIVIDUAL ACKNOWLEDGMENT

COUNTY OF OKALHOMA Oklahoma Form

Before me, the undersigned, a Notary Public in and for said County and State on

this ____ day of ________, 2003, personally appeared __________________________

to me known to be the identical person who executed the within and foregoing instrument

and acknowledged to me that he executed the same as his free and voluntary act.

Given under my hand and seal the day and year last above written.

My commission expires __________ ________________________ Notary Public

Objections

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The most powerful and useful words you’ll ever learn to use are, “I object.” An

objection must have grounds, such as lack of foundation or leading the witness, but most

of the time we will use objections to prevent attorneys from giving putative testimony.

REMEMBER: ATTORNEYS CAN’T TESTIFY – NEVER!!!! When an attorney

begins to testify say, “I object,” and quickly follow with the grounds for the objection,

which is counsel is attempting to testify for a witness not in appearance. If you are

overruled a third time on your objection say, “I enter an exception to the court overruling

my objection and demand proof of claim.” The matter should be reset for appearance of

the witness, but what usually happens is the court allows hearsay. IF YOU HAVE A

COURT REPORTER PRESENT, WHICH YOU SHOULD HAVE ANYTIME THERE

IS A SUBSTANTIVE QUESTION TO BE DETERMINED, the court will be proceeding

in clear absence of all jurisdiction and subject to suit for damages in its’ individual

capacity.

Notice of lis pendens

174

IN THE SUPERIOR COURT OF CARROLL COUNTY STATE OF GEORGIA

Bill Blackwell, ) ) Plaintiff, ) ) ) vs. ) ) Esler C. Citizen and ) Angie G. Citizen, ) )

Defendants. ) _____________________________________)

NOTICE OF LIS PENDENS

BRIEF IN SUPPORT

The above referenced action to take the property located at 705 Cross Plains

Road, Carrollton, Georgia, is subject to a pending action in Chilton County Circuit Court,

Chilton County, Alabama, attached as exhibit “A.” Service of process has been made on

Bill Blackwell, defendant in the Chilton County Circuit Court action, attached as “B.”

Third parties are hereby bound that any interest they may acquire in the property

located at 705 Cross Plains Road will be subject to the outcome of the Chilton County

action attached.

Prepared and submitted by: _________________________________________________ Esler C. Citizen and Angie G. Citizen 705 Xxxx Road Xxxxx, Georgia 30116 (770)834-0000

AFFIDAVIT

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I, Esler C. Citizen, also known as Butch Citizen, of lawful age, being first duly sworn, upon oath state as follows: 1. I, hereby give notice that on ____________, 2003, I filed a petition in the Circuit Court of Chilton County, Alabama, case number ___________, styled as Esler C. Citizen, a.k.a. Butch Citizen, Plaintiff, v. Bill Blackwell, Defendant, which action is pending in such cause in said Court in which action various issues have been raised which affect Bill Blackwell's interest in the title to the property located at 705 Cross Plains Road, Carrollton, Georgia. Mr. Blackwell is in receipt of service. 2. The property located at 705 Xxxxxx Road, Carrollton, Georgia, is of a character to be subject to the principle of Lis Pendens. 3. That 705 Xxxxxx Road, Carrollton, Georgia, is sufficiently described in and identified in the above styled case and is in fact the res of the pleadings attached so that there can be no mistake regarding what property is in question and whether that property is subject to the outcome of the attached pleadings. 4. The Court in the above styled case has jurisdiction of Esler C. Citizen and Angie G. Citizen, and also of the property. __________________________________ Esler C. Citizen

Before me, the undersigned, a Notary Public in and for said County and State, on

this ____ day of ________, 2003, personally appeared Esler C. Citizen to me known to

be the identical person who executed the within and foregoing instrument and

acknowledged to me that he executed the same as his free and voluntary act.

Given under my hand and seal the day and year last above written.

My commission expires __________ ________________________ Notary Public

Preliminary injunction

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John Q. and Jane Citizen 18 Winchester Drive River City, New Jersey 07700 (732) 905-0000 John Q. Citizen and : SUPERIOR COURT OF NEW JERSEY Jane Citizen, : Plaintiffs, : CHANCERY DIVISION: : MONMOUTH COUNTY vs. : : Docket No. ____________ GREEDY MORTGAGE, INC., : Civil Action Defendant. : : : PLAINTIFF'S MOTION FOR : PRELIMINARY INJUNCTION AND : APPLICATION FOR AN ORDER : REQUIRING THE DEFENDANT TO SHOW : CAUSE WHY THE INJUNCTION SHOULD : NOT BE GRANTED ______________________________: John Q. and Jane Citizen, plaintiffs in the above styled case and defendants in civil case F-00000-97, Superior Court of New Jersey, Chancery Division, Monmouth County, under authority of NJCR rule 4:52, et seq., move the Court enjoin the Monouth County Sheriff from removing John Q. and Jane Citizen from their residence at 18 Winchester Drive, River City, New Jersey, also identified as Township of River City, Monmouth County, New Jersey, lot 9, and further restrain and enjoin GREEDY Mortgage, Inc., or GREEDY Mortgage, Inc.'s representative from any act to remove John Q. and Jane Citizen or take possession of the property located at 18 Winchester Drive, River City, New Jersey, until such time as John Q. and Jane Citizen's petition (attached) can be adjudicated on its merits.

BRIEF IN SUPPORT

1. It is not now, nor has it ever been John Q. and Jane Citizen's intention to avoid

paying any obligation that John Q. and Jane Citizen lawfully owe.

2. Dewey, Cheatum, and Howe, purporting to act on behalf of GREEDY

Mortgage, Inc., have repeatedly refused to document and verify an obligation which John

Q. and Jane Citizen may owe GREEDY Mortgage, Inc., as required by law.

3. John Q. and Jane Citizen will suffer irreparable harm by denial of this

preliminary injunction. John Q. and Jane Citizen have lived at 18 Winchester Drive,

River City, New Jersey, for many years together with their children. John Q. and Jane

Citizen will lose their abode and suffer irreparable harm by denial of this preliminary

177

injunction. John Q. and Jane Citizen will suffer insult, degradation, and deprivation of

personhood by denial of this preliminary injunction.

4. John Q. and Jane Citizen are likely to prevail in the attached petition. The

record in the underlying case makes John Q. and Jane Citizen's averments undeniable.

5. Public interest will not be impaired by granting this preliminary injunction.

The public interest will be impaired by denial of John Q. and Jane Citizen's preliminary

injunction by public awareness that citizens can be victimized by those who declare

themselves to be of a superior class.

6. John Q. and Jane Citizen have no other remedy at law to protect themselves

from parties records show have conspired to deprive them of their most fundamental

rights.

7. Denial of John Q. and Jane Citizen's preliminary injunction will cause John Q.

and Jane Citizen to bear a greatly unbalanced harm. GREEDY Mortgage, Inc.'s harm

would be delayed possession. John Q. and Jane Citizen's harm will be loss of abode,

damage to reputation and character, and assault on personhood.

8. Denial of John Q. and Jane Citizen’s preliminary injunction goes beyond

economic injury.

9. The cost to the court on error later corrected to the favor of GREEDY

Mortgage, Inc., is not as great as the cost to the Court for error later corrected to John Q.

and Jane Citizen's favor.

10. Granting John Q. and Jane Citizen's Motion for Preliminary Injunction

conserves the property no matter who prevails. Denial of John Q. and Jane Citizen's

Motion for Preliminary Injunction directly affects the property by reducing it to a status

of a bell which cannot be “unrung.”

New Jersey rules governing civil practice require this Court to conduct a show

cause hearing requiring the defendant to appear and be recorded verbatim. Ideals of

substantial justice and fair play require this Court grant John Q. and Jane Citizen interim

relief until their complaint can be adjudicated.

Prepared and submitted by: _________________________________________________ John Q. Citizen and Jane Citizen Writ of mandamus

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Issues from a court of superior jurisdiction can be directed toward a private or municipal corporation, or any officer of a corporation, to an inferior court, or public officer commanding the performance of a particular administrative act or restoration of right deprived of.

IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

Ref: Case No. 02-CV-000-B(M)

In Re: John Justice

And Colleen Justice, Petitioners

vs.

The United States District Court for the

Northern District of Oklahoma Ex rel. Thomas R. Brett,

Respondent

PETITION FOR A WRIT OF MANDAMUS Federal Rules of Appellate Procedure, Rule 21

1. John Justice and Colleen Justice, aggrieved parties, petition this court to issue a Writ of Mandamus compelling Thomas R. Brett, District Judge for the Northern Federal District of Oklahoma, to vacate Frank H. McCarthy’s order granting John G. Lanning’s motion for a protective order.

Brief in support

2. Counsel for Lanning, Linda Soper, engaged discovery. See attached requests

for admissions. John Justice and Colleen Justice answered Soper’s discovery and

returned discovery. See attached request for admissions to John G. Lanning. After Soper

was unhappy with the Justices’ responses to her admissions, and realizing that Lanning

was about to incriminate himself further and prove the Justices’ case, Soper filed a

motion for a protective order. The Justices moved to strike Soper’s bad faith motion.

Judge Brett assigned the motions to Magistrate McCarthy. McCarthy disregarded the

motion to strike, which cited the facts that the Justices had complied with discovery and

were being deprived of due process and that the Justices’ request for admissions would

further incriminate Lanning. June, 2002, the Justices placed Thomas R. Brett on judicial

179

notice of un-denied felony committed by Soper, Lanning, Lanning’s co-defendant Busby,

and Busby’s lawyer, Joseph Farris. Thomas R. Brett has ignored the judicial notice.

McCarthy plagiarized papers submitted by Soper, issued an order granting the protective

order, and lied that the Justice’s had not cited a reason that the motion for protective

order should be stricken. McCarthy also obstructed justice by threatening John Justice

and Colleen Justice. See attached order of Magistrate McCarthy. John Justice and

Colleen Justice moved for vacation of the protective order and noticed Soper, who has

not answered. Thomas R. Brett has disregarded the motion to vacate, apparently waiting

to see if Soper replies, then, Judge Brett will again defer to McCarthy so McCarthy can

excise more of his venomous hatred of the Justices. Inquiry shall determine that the same

information which incriminates Lanning incriminates McCarthy. In the vernacular,

McCarthy is trying to save his ass from a long stint in the iron house.

First cause for granting the vacation of the protective order

3. Lanning is in receipt of his requested discovery from the Justices. The Justices

are being deprived of due process right of discovery from Lanning, attached. McCarthy’s

venal order not only deprives John Justice and Colleen Justice of due process rights,

McCARTHY USURPS THE RULE MAKING POWER OF CONGRESS, THE

RULE MAKING POWER OF THE UNITED STATES SUPREME COURT, AND

THE RULE MAKING POWER OF THE TENTH CIRCUIT COURT OF

APPEALS.

Second cause for vacation of the protective order

4. Soper contends the order is necessary to protect Lanning from the burden of

discovery while the question of Lanning’s immunity is determined. Notwithstanding the

discovery only entails Lanning’s responses to about the same number of admissions

foisted on John Justice and Colleen (yeah, right, that’s real oppressive), the question of

Lanning’s immunity defense is res judicata and reasserted in utmost bad faith. This

court is noticed this case was filed April 19th, 2002. Soper attempted an unlawful

demurrer disguised as a motion to dismiss based on so-called absolute judicial immunity.

August 7th, 2002, Thomas R. Brett denied Soper’s motion to dismiss, thereby depriving

Lanning of immunity defense since Soper declined to appeal Brett’s order denying

Lanning dismissal based on affirmative defense of lack of capacity, judicial immunity.

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The assertion that Lanning is entitled to a protective order while the question of immunity

is being determined is, purely and simply, a FRAUD ON THE COURT TO WHICH

McCARTHY WILLFULLY ACCEDED. Again, the unlearned McCarthy usurps

the rule making capacity of higher authorities by ruling that a defense denied can be

reasserted.

Third cause for vacation of the protective order

4. Linda Soper has confessed conspiracy to violate and violation of Oklahoma

Statute Title 21. Crimes and Punishments, Chapter 13, Section 453. The moment Soper

committed this felony, Soper became a material witness in this instant case. Lawyer

cannot be witness and counsel in the same cause. Thomas R. Brett has disregarded

notice of this and other crimes, presumably violating 18 USC 4. McCarthy, with

knowledge or means to know of the crimes committed by Soper and Lanning exhibits a

demeanor, “They really ain’t no law ‘cept the law I makes up as I goes along, see?” The

egregious protective order not only obstructs justice, Thomas R. Brett and Magistrate

McCarthy usurp the Oklahoma legislature’s authority to make laws.

Fourth cause for vacation of the protective order

5. Thomas R. Brett and Magistrate McCarthy both have actual knowledge that

Lanning, his co-defendant Busby, and Magistrate McCarthy have violated 26 USC

7214 (a), a felony. McCarthy no doubt believes the protective order will protect him as

well as Lanning and Busby. McCarthy’s arrogated protective order, even if valid, does

not apply to Busby. See doctrine established by The United States Supreme Court in

Dennis v. Sparks, 101 S.Ct. 183, U.S. 1980. The protective order obstructs justice and

usurps the law making power of The United States Congress.

Remedy sought

4. Respect for the rule of law and regard for ideals of substantial justice and fair

play require this Tenth Circuit Court of Appeals to end the usurpation of power and

obstruction of justice promulgated by Frank H. McCarthy by granting this writ of

mandamus compelling Thomas R. Brett to vacate the protective order.

Prepared and submitted by: ________________________________________ John Justice and Colleen Justice

181

Deposing them Deposing them is often essential. Prepare your questions in advance and ask your questions in a manner that proves your case. WARNING! An attorney may try to “repair” the testimony of his witness! Object on record on the grounds that the attorney is attempting get his witness to change his testimony – specific ground = leading the witness. Being deposed If you are asked for a deposition, rejoice! It is your opportunity to testify, to tell your story. Just beware of the treachery of attorneys. You can always ask that the question be repeated, ask that compound questions be asked one at a time, you can say “I don’t know,” and “I don’t recall.” For questions answered in the affirmative say, “To my best recollection at this time . . .” Interrogatories Interrogatories are written questions which can include a request for financials. Admissions Admissions are similar to affidavits inasmuch as they must be denied or they can be asserted to the court as stipulations as to fact.

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

John Justice, ) and ) Colleen Justice, a married couple, ) ) Plaintiffs, ) )

vs. ) No. 02-CV-300-B(M) )

William W. Busby, an individual, ) and ) John G. Lanning, an individual, ) ) Defendants. ) ____________________________________)

Plaintiffs’ request for admissions to John G. Lanning

Request number 1: Admit or deny that the Supreme Court of Oklahoma has ruled and

determined that the district court is a court of general jurisdiction and is constitutionally

endowed with unlimited original jurisdiction of all justiciable matters; however,

182

unlimited original jurisdiction of all jusiticiable matters can only be exercised by the

district court through the filing of pleadings which are sufficient to invoke the power of

the court to act.

Request number 2: Admit or deny that sufficiency of pleadings means the record in a

case must show evidence submitted through a competent fact witness, the want of which

deprives the court of subject matter jurisdiction.

Request number 3: Admit or deny that The United States Supreme Court has ruled and

determined that judges are deprived of immunity where the judge proceeds according to a

private prior agreement.

Request number 4: Admit or deny that for determining whether a judge is acting within

judicial power means whether the judge has subject matter jurisdiction.

Request number 5: Admit or deny that a judge, once credibility of evidence is

challenged, has a duty to make inquiry, reasonable under the circumstances, into the

integrity of the evidence.

Request number 6: Admit or deny that a judge is deprived of subject matter jurisdiction

and judicial immunity where the judge willfully accedes to fraud.

Request number 7: Admit or deny that a judge is deprived of subject matter jurisdiction

and immunity where a party’s due process rights are violated.

Request number 8: Admit or deny that the Internal Revenue Service has complete

authority to take money or property through administrative action, but court’s have ruled

that party’s due process rights are violated rendering the taking unconstitutional if the

parties are deprived of a judicial review of the administrative action.

Request number 9: Admit or deny that it is a felony for any agent of the Internal

Revenue Service to ask for or demand a sum greater than or different that due and owing

the United States Treasury.

Request number 10: Admit or deny that sums due and owing the Treasury are noted

under oath on Internal Revenue Service form 23-C, summary record of assessment.

Request number 11: Admit or deny that the court, in CJ-94-127, had a duty to require

competent evidence introduced through a competent fact witness prior to depriving the

Justices of their property.

183

Request number 12: Admit or deny that the court in CJ-94-127 joined William M. Busby

in fraud to extort property from Colleen and John Justice and aided and abetted agents of

the Internal Revenue Service and the so-called Department of Justice in express violation

of 26 USC 7214(a) – a felony.

Request number 13: Admit or deny John G. Lanning has received compensation from

the Internal Revenue Service or so-called Department of Justice to aid and abet the taking

of property from parties such as John Justice and Colleen Justice.

Request number 14: Admit or deny that the Internal Revenue Service prepared and

submitted false papers in regard to John Justice and Colleen Justice.

Request number 15: Admit or deny that John G. Lanning, in cause CJ-2001-659, refused

to allow John Justice and Colleen Justice to enter court.

Request number 16: Admit or deny that John G. Lanning, in cause CJ-2001-659, refused

to allow John Justice and Colleen Justice to speak.

Request number 17: Admit or deny that John G. Lanning refused to read the pleadings of

John Justice and Colleen Justice prior to conducting a conference with William W. Busby

for a determination on CJ-2001-659.

Request number 18: Admit or deny that John G. Lanning knows and understands what is

meant by “term of court” and failed or refused to memorialize an order within the term of

court in CJ-2001-659.

Request number 19: Admit or deny that appeal of a void order is appropriate only where

the court below has committed misprision and that the appellate court’s correct procedure

is to vacate the void order, then dismiss the appeal.

Request number 20: Admit or deny that after being sued in Federal District Court, John

G. Lanning, conspired to construct and did construct a false paper with the intent of

serving it in this court as genuine, thereby committing a felony.

Request number 21: Admit or deny that statements of counsel in brief or in argument are

not facts before the court. A court of competent jurisdiction must rely on testimony of

competent fact witnesses for its rulings and determinations. Where one party has

supported pleadings with un-rebutted affidavit, that party cannot lose and party without

testimony cannot win.

184

Request number 22: Admit or deny, to a great extent, Oklahoma courts are controlled by

the Oklahoma Bar Association, which exists and operates as a known syndicate of

organized crime.

Request number 23: Admit or deny that where district court judge has duty to make

inquiry, but fails to do so on two matters where order is rendered without evidence, the

district court judge has engaged in racketeering.

Request number 24: Admit or deny Oklahoma lawyers and judges routinely meet ex

parte to plan results against pro se litigants.

Quo warranto

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS

Frederick Florence, ) A citizen of Texas, ) ) Petitioner, ) )

vs. ) No.______________________ )

Sidney A. Fitzwater, ) Judge of the district court, ) ) Respondant. ) ____________________________________)

Petition in the nature of a petition for a writ of quo warranto, Federal Rules of Civil Procedure, rule 81(a)(2), and complaint under authority of 28 USC 2672

Frederick Florence petitions this court under authority of Chandler v. 10th Circuit,

398 U.S. 74, for removal of Sidney A. Fitzwater. One of two scenarios is correct: (1)

Fitzwater is a usurper to the position of United States District Court judge by virtue of the

fact that Fitzwater has failed or refused to take an oath to uphold The Constitution of The

United States of America as is required by 5 U.S.C. 3331 and prescribed under 28 U.S.C.

453, or, (2) Fitzwater is in breach of the oath and duty found at 28 USC 453 and also in

violation of The Code of Conduct for United States Judges.

185

The record made in Civil Action No. 3:02-CV-2775-D verifies that Fitzwater is

incompetent. In example, Fitzwater dismissed the case because Frederick Florence

claimed domicile in Texas. Fitzwater advocated that citizenship controls and was

particularly contentious over Frederick Florence’s use of domicile to designate

citizenship. Fitzwater relies on 1925 case, Realty Holding Co. v. Donaldson, which does

not address domicile. Jurisdiction may be exercised over an individual who is domiciled

within the forum state. The leading case allowing jurisdiction based on domicile is

Milliken v. Meyer, 311 U.S. 457 (1940). The rationale for allowing jurisdiction based on

domicile was explained in Milliken as follows: “A state which accords privileges and

affords protection to a person and his property by virtue of his domicile may also exact

reciprocal duties.” Domicile is usually held to be synonymous with CITIZENSHIP

per personal jurisdiction purposes. A person can have only one domicile at a time

for this purpose. Domicile is more limited than residence, since people can have several

residences at one time. A person is considered to be domiciled in the place where he has

his current dwelling-place, if he also has an intention to remain in that place for an

indefinite period. For a thorough understanding of the importance of domicile, see

BURNHAM v. SUPERIOR COURT CALIFORNIA (05/29/90) 495 U.S. 604, 110 S.Ct.

2105, 109 L.Ed. 2d 631, 58 U.S.L.W. 4629. Also, this court is advised to search using

the term “domiciled as a citizen.” Although Fitzwater might wish to claim ignorance,

Fitzwater is reminded of the axiom “ignorance of the law is no excuse.”

The record made in Civil Action No. 3:02-CV-2775-D verifies that Fitzwater is

contumacious. Not only does Fitzwater contravene controlling authority on the issue of

domicile, Fitzwater shows contempt for The United States Supreme Court Doctrine

established in Haines v. Kerner, wherein The United States Supreme Court ruled that

regardless of the form of pro se pleadings, pro se litigants are entitled to present evidence

in support of their claims. Fitzwater cannot deny this abrogation of United States

Supreme Court Authority as Fitzwater states in his paper, “Florence maintains in his

motion that, because he is pro se, the court is obligated to inform him of curable defects

in his pleadings. Assuming this is true in the sense that Florence relies on the

doctrine, the court has done so. In its January 8, 2003 order it explicitly informed

Florence what was required to do to plead this court’s subject matter jurisdiction

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and gave him 20 days to do so.” This court shall notice: Frederick Florence was not

noticed on this order of the court, and the order fails to specify defects consistent with

Platsky v. CIA, wherein the doctrine was established: court errs where the court dismisses

pro se’s complaint without informing pro se of defects in pleading. This court is in want

of an explanation of how composing an order which falsely asserts a non-specific defect

in pleading will warrant dismissal unless the pleading is, in effect made defective, and

failing to notice the pro se litigant of the order comports with any ideal of due process,

justice, fair play, or anything other than chicanery.

The record made in Civil Action No. 3:02-CV-2775-D verifies that Fitzwater is

dishonest. Fitzwater allowed defendant Frontier Airlines to answer out of time, then

whined about Frederick Florence not timely responding to an order Frederick Florence

was never noticed on. Of all the papers filed by the court and the defendant in Civil

Action No. 3:02-CV-2775-D, Frederick Florence was properly noticed only on

Fitzwater’s dismissal of February 10th, 2003.

Affidavit

I, Frederick Florence, of age and competent to testify, affirm under penalty of perjury that

the factual averments in the above and foregoing are truthful and accurate to the best of

my knowledge.

__________________________ Frederick Florence State of ____________) ) ss County of __________) My commission expires ___________________ Notorial acknowledgment _____________________

Conclusion

This court’s determination Sidney A. Fitzwater is a usurper to the office of United

States District Court judge due to the fact that Fitzwater has failed or refused to take an

oath to uphold The Constitution of The United States of America carries the non-

discretionary duty to remove Fitzwater from office. And no! Impeachment is not

required. See Chandler v. 10th Circuit. This court’s determination Sidney A. Fitzwater

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has met oath requirements requires Fitzwater’s removal from office for reason of

violation of oath and violation of The Code of Conduct for United States Judges.

Prepared and submitted by: _____________________________ Frederick Florence Notice to: Administrative Office of the United States Courts One Columbus Circle, N. E. Washington, D.C. 20544 John Ashcroft United States Attorney General 10th & Constitution Avenue N.W. Washington, DC 20530

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS

Frederick Florence, ) A citizen of Texas, ) ) Petitioner, ) )

vs. ) No.______________________ )

Sidney A. Fitzwater, ) Judge of the district court, ) ) Respondent. ) ____________________________________)

Order

Whereas this court is fully informed that Sidney A. Fitzwater is unfit for service

as a judge of the United States District Court for the Northern District of Texas, the clerk

of courts for the Northern Federal District of Texas is ordered to reassign all cases now

pending before Sidney A. Fitzwater to other judges, and the matter is remanded to The

Attorney General of the United States.

____________ _________________________________________ Date Chief or presiding judge of the District Court

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Federal tort claim

Administrative Office of the United States Courts

Dwayne Garrett, petitioner,

vs.

Sam A. Joyner, magistrate judge for the Northern District of Oklahoma James H. Payne, United States District Judge for the Northern District of Oklahoma

Stephanie K. Seymour, judge for the Tenth Circuit Court of Appeals John C. Porfilio, judge for the Tenth Circuit Court of Appeals

Stephen H. Anderson, judge for the Tenth Circuit Court of Appeals Deanell R. Tacha, judge for the Tenth Circuit Court of Appeals Bobby R. Baldock, judge for the Tenth Circuit Court of Appeals

Wade Brorby, judge for the Tenth Circuit Court of Appeals David M. Ebel, judge for the Tenth Circuit Court of Appeals

Paul J. Kelly, Jr., judge for the Tenth Circuit Court of Appeals Robert H. Henry, judge for the Tenth Circuit Court of Appeals

Mary Beck Briscoe, judge for the Tenth Circuit Court of Appeals Carlos F. Lucero, judge for the Tenth Circuit Court of Appeals

and Michael R. Murphy, judge for the Tenth Circuit Court of Appeals

respondents.

Claim under authority of 28 USC 2672 “Federal Tort Claim”

1. The respondents have committed an injury cognizable under Oklahoma Law

by preparing false writings with the intent to conceal defrauding Dwayne Garrett of a

sum of not less than one million six-hundred thousand dollars. Dwayne Garrett brought

suit in the district court for the northern federal district of Oklahoma alleging cause of

action under authority of 42 USC 1983 – malicious prosecution. See original petition

attached. Magistrate judge Sam A. Joyner recommended dismissal in Joyner’s report and

recommendation. Dwayne Garrett filed a timely objection to Joyner’s report and

recommendation requiring the court’s non-discretionary duty to review the complaint of

Dwayne Garrett de novo. See Federal Rules of Civil Procedure, rule 72 (b). Joyner

committed fraud: Joyner was placed on notice of violation of Title 74, Chapter 19,

Section 585 – a criminal act. Joyner committed fraud by concealment to effectively

cover up criminal misconduct by Dwayne Garrett’s adversaries. James H. Payne

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committed fraud by depriving Dwayne Garrett of de novo review of undisputed claims of

Dwayne Garrett’s original petition. It is also true that Payne committed fraud by

adopting Joyner’s report and recommendation more than sixty days after Joyner filed the

report and recommendation. Dwayne Garrett was also defrauded of right to de novo

review on appeal. See opening brief and reply briefs. The en banc panel of the Tenth

Circuit also found it amusing to defraud Dwayne Garrett. See Dwayne Garrett’s motion

to vacate attached.

Conclusion

The record attached by Dwayne Garrett shows Sam A. Joyner, James H. Payne,

Stephanie K. Seymour, John C. Porfilio, Stephen H. Anderson, Deanell R. Tacha, Bobby

R. Baldock, Wade Brorby, David M. Ebel, Paul J. Kelly, Jr., Robert H. Henry, Mary

Beck Briscoe, Carlos F. Lucero, and Michael R. Murphy regard The Constitution of The

United States of America, The Code of Conduct for United States Judges, and the oath

prescribed at 28 USC 543 as mere refuse.

Remedy sought

The rule of law requires removal of all respondents from office and compensating

Dwayne Garrett in an amount as this agency may find reasonable, lawful, and just, but

sufficient so as to bring about needed reform to a federal judiciary which operates on a

zero ( 0 ) integrity basis. This agency’s swift response to act on Dwayne Garrett’s claim

avoids the conclusion The United States is waiving sovereign immunity.

Prepared and submitted by: _______________________________ Dwayne Garrett P.O. Box 3242 Muskogee, Oklahoma 74402

Notice to: Administrative Office of the United States Courts One Columbus Circle, N. E. Washington, D.C. 20544 John Ashcroft United States Attorney General 10th & Constitution Avenue N.W. Washington, DC 20530

190

Workbook assignment: Can you be compelled to testify? _________________________ What if the proceedings are civil? ___________________________________________ Can you be compelled to give your social security number? _______________________ Two True Stories: Paige in New York had been harassed for over a year by the Federal Trade Commission. The FTC alleged that sole proprietor Paige was engaging in Internet fraud and repeatedly demanded that Paige turn over books, records, and electronic records. I kept telling Paige not to turn over the records. Paige demanded the “evidence” from the FTC, but FTC attorneys said Paige couldn’t have the evidence. Paige threatened to use a FOIA to get the “evidence” – FTC attorneys claimed that wouldn’t work. Oh, yeah? We produced the “evidence” using a FOIA and it turned out to be nothing. Finally, the FTC got a federal judge to issue a show cause order compelling Paige to appear and turn over records or be found in contempt. Paige’s Patriot friends told her, “Don’t go. The federal court doesn’t have jurisdiction over you and by going, you’ll give the court jurisdiction.” I persuaded Paige that her Patriot friends were confused and that she should go to the hearing. Paige went. When the judge informed her that the purpose of the hearing was to determine whether Paige should be found in contempt and fined five hundred dollars a day for not turning over her records, Paige asked the judge, “Is there a statute, rule, or law that compels me to turn over my records?” The judge answered “No, so I’m not going to find you in contempt.” The harassment of Paige by the FTC ended immediately. What would have happened to Paige if she had listened to well meaning, but uninformed Patriots? The Billheimers were threatened for months and months by the IRS and a federal judge for not turning over their records to the IRS. Finally, a show cause hearing was set for December 12th, 2002. The Billheimers were to appear with their books and records for the IRS or they would be imprisoned until they turned over the records. December 11th, 2002, the judge was sued under authority of 42 USC 1983 for compelling testimony in violation of the Fifth Amendment. See appendix for the judge’s order vacating the show cause hearing.

191

Defending against a motion for summary judgment

IN THE DISTRICT COURT OF OKLAHOMA COUNTY

STATE OF OKLAHOMA

SHAMEFUL SHAM CORP., ) Plaintiff and defendant on ) counterclaim, ) ) v. ) Case No. CS 0000 ) Timothy Goodspeed, ) Defendant and ) counterclaimant. ) ____________________________________)

DEFENDANT AND COUNTERCLAIMANT Timothy Goodspeed’s RESPONSE TO PLAINTIFF AND DEFENDANT ON COUNTERCLAIM’S MOTION FOR

SUMMARY JUDGMENT

PLAINTIFF AND DEFENDANT ON COUNTERCLAIM’S MOTION FOR SUMMARY JUDGMENT IS A SUBSTANTIVE AND PROCEDURAL NULLITY

BRIEF IN SUPPORT

1. Plaintiff and counterclaimant has placed no facts on the record. No fact

appears on record whether by deposition, admission, answer to interrogatory, or by

affidavit to support the averments of plaintiff and defendant on counterclaimant’s

pleadings. Documents proffered by Dewey Cheatum are unverified, out-of-date,

irrelevant, and inadmissible. The record shows that defendant and counterclaimant

Timothy Goodspeed has testified and testifies again infra establishing that material facts

to which there is substantial controversy are at issue in this case.

2. Facts in dispute / triable issues of fact: Whether SHAMEFUL SHAM CORP.,

authorized this action, Whether a contract between SHAMEFUL SHAM CORP. and

Timothy Goodspeed survives today, Whether Timothy Goodspeed currently owes

SHAMEFUL SHAM CORP. money, Whether Dewey Cheatum’s undisputed act of

refusing to verify and document that Timothy Goodspeed owes SHAMEFUL SHAM

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CORP. money is an act of bad faith and or fraud, and Whether Timothy Goodspeed has

been damaged emotionally, financially, and / or socially by ongoing litigation coupled

with continued refusal to verify and document that SHAMEFUL SHAM CORP.

authorized this action; that a contract between SHAMEFUL SHAM CORP. and Timothy

Goodspeed survives today; or that Timothy Goodspeed owes SHAMEFUL SHAM

CORP. money.

ARGUMENT AND AUTHORITIES

3. Statements of counsel in their briefs or arguments are not sufficient for

purposes of granting a motion to dismiss or for summary judgment, Trinsey v. Pagliaro,

D.C. Pa. 1964, 229 F.Supp. 647. Unsupported contentions of material fact are not

sufficient on motion for summary judgment, but rather, material facts must be supported

by affidavits and other testimony and documents that would be admissible in evidence at

trial, Cinco Enterprises, Ins. v. Benso, Okla., 890 P2d 866 (1994). Where there were no

depositions, admissions, answers to interrogatories, or affidavits, plaintiffs motion for

summary judgment could not be considered under district court rule (O.S. title 12,

Chapter 12, Rule 13) providing for judgment where facts are not controverted, inasmuch

as there was a complete absence of any of requisite basis for a proper determination that

no substantial controversy existed. Oklahoma Statutes Annotated, Supp. pg. 113. Any

ruling on motion for summary adjudication must be made on record parties have actually

made and not upon one that is theoretically possible, State ex rel. Macy v. Thirty

Thousand Seven Hundred Eighty One Dollars & No / 100, Okla. App. Div. 1, 865 P.2d

1262 (1993).

Prepared and submitted by: ___________________________________ Timothy Goodspeed

193

Defending against a motion to dismiss

IN THE DISTRICT COURT OF OKLAHOMA COUNTY

STATE OF OKLAHOMA

Dorothy L. Citizen, ) ) Plaintiff, ) ) vs. ) No.CJ-2000-0000 ) FIRST USA BANK, N.A. ) / FCC National Bank, ) ) Defendant. ) _____________________________________ )

PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS / PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Brief in support of Plaintiff's

Response to Defendant's Motion to Dismiss

1. Defendant's motion to dismiss is a substantive and procedural nullity.

Defendant's motion to dismiss is frivolous on its face. If dismissal motion also tenders

for consideration materials outside of pleadings, summary judgment procedure must be

utilized, Bray v. Thomas Energy Systems, Inc., 909 P.2d 1191(1995). Fact is "material,"

for purposes of motion for summary judgment, if proof of that fact would have effect of

establishing or refuting one of the essential elements of cause of action, Brown v.

Oklahoma State Bank & Trust Co. of Vinita, Oklahoma, 860 P.2d 230 (1993).

Unsupported contentions of material fact are not sufficient on motion for summary

judgment, but rather, material facts must be supported by affidavits and other testimony

and documents that would be admissible in evidence at trial, Cinco Enterprises, Inc. v.

Benso, Okla., 890 P.2d 866 (1994). Statements of counsel in brief or in argument are not

sufficient for a motion to dismiss or for summary judgment, Trinsey v. Pagliaro, D.C. Pa.

1964, 229 F.Supp. 647. Where there are no depositions, admissions, answers to

194

interrogatories, or affidavits in support of motion for summary conclusion, the motion

cannot be considered. See O.S. title 12, Chapter 12, Rule 13. Pro Se litigants cannot be

dismissed for failing to state a claim upon which relief can be granted. See Haines v.

Kerner, 404 U.S. 519 (1972). Although Karl F. Smelly might presume to advise The

United States Supreme Court, this Court has knowledge that Dorothy L. Citizen's

procedural due process rights require opportunity to present evidence on her claims.

2. Dorothy L. Citizen's Petition to Vacate a Void Judgment is procedurally

proper, placing substantive fact issues before this Court via unrebutted affidavits. See

exhibits "A" and "B."

Dorothy L. Citizen's Petition to Vacate a Void Judgment raises two issues: subject

matter jurisdiction and fraud practiced in obtaining judgment.

Complaint of want of subject matter jurisdiction does not have to be timely raised.

See O.S. title 12, § 2012 B. Subject matter jurisdiction is not dependent on consent or

waiver of a party, and challenge to subject matter jurisdiction may be raised at any time

in the course of proceedings, Shaffer v. Jeffery, Okla., 915 P.2d 910 (1996). Laches is

not defense to vacation of void judgment, B & C Investments, Inc. v. F. & M. Nat. Bank

& Trust, Okla. App. Div. 903 P.2d 339 (1995). Defendant who delayed more than eight

years before attacking void default judgment would not be precluded from having the

judgment vacated on ground that he was guilty of laches, in view of statute expressly

providing that a void judgment may be vacated any time by a party or person affected

thereby, Chaney v. Reddin, Okla., 201 Okla. 264, 205 P.2d 310 (1949). Oklahoma

District Court Judges have no inherent jurisdictional authority whatsoever. Oklahoma

District Court Judges acquire jurisdiction by pleadings sufficient to invoke their authority

to act. See Oklahoma Constitution, Article 7, Section 7. See also, Buis v. State, 1990 OK

CR 28, 792 P.2d 427. In his Motion for Summary Judgment on CS-99-332-25, W.

Rogers Abbott, II, cited 12A O.S. §2-709. Oklahoma Statute title 12A, section 2-709

articulates procedures when a merchant seeks remedy for goods contracted for and

195

alleges non-receipt of payment after delivery of goods, recovery of goods for resale, and

determination of setoff. Clearly FCC National Bank v. Dorothy L. Citizen does not

construe within empowerment of 12A O.S. §2-709. Subject matter jurisdiction may have

existed under other authorities, i.e., O.S. 12A, § 2-725. Either W. Rogers Abbott, II,

failed to invoke the Court's authority to act, or openly lied about the timeliness of his

petition. There are no other reasonable conclusions.

The record shows that W. Rogers Abbott, II, committed fraud by claiming that

Dorothy L. Citizen had a contract with FCC National Bank, by claiming that Dorothy L.

Citizen owed FCC National Bank money, and claiming that the Court had added

$4,859.34 interest to the alleged judgment.

Conclusions

Determination by this Court that the defendant has entered nothing on record by

testimony, affidavit, or deposition and that the rulings and determinations of The United

States Supreme Court have precedent over Karl F. Smelly's opinions justly requires that

defendant's motion to dismiss be denied as legally insufficient.

This Court is in receipt of judicial notice of the criminal acts of W. Rogers

Abbott, II. This Court avoids charge of misprision of felony by remanding W. Rogers

Abbott, II, to other authority for a grand jury's determination.

_____________________________ Dorothy L. Citizen 7828 S. Xxxx Blvd. Oklahoma City, Oklahoma 73159-5155 (405) 681-0000

196

Assistance of counsel

IN THE DISTRICT COURT OF BUTLER COUNTY

STATE OF KANSAS

Marvin R. Merryweather, ) ) Plaintiff, ) )

vs. ) No. 02-C-00 )

EPPS SERVICE, INC., ) )

Defendant. ) ____________________________________)

Plaintiffs’ motion for a declaratory judgment on the select issue of counsel

FIRST PROPOSTION: The Kansas District Court, meaning Kansas District

Judge, is of limited jurisdiction and may exercise jurisdiction only when specifically

authorized to do so.

SECOND PROPOSTION: The Kansas District Court wants subject matter

jurisdiction to compel individuals in a Kansas civil suit to contract with a so-called

licensed bar attorney. No statute, rule or law empowers the Kansas District Court to voir

dire a person providing assistance of counsel for individuals appearing in a Kansas civil

case.

THIRD PROPOSTION: The American Bar Association and its constituent

organizations, such as the Kansas Bar Association, are not creatures of statute, meaning

they are private business organizations and not authorized by Constitution or statute to

exist or monopolize courts of the United States of America.

FOURTH PROPOSITION: A Kansas District Court (Kansas judge) who

deprives an individual appearing in a civil hearing or trial based on belief or knowledge

that the person appearing for the purpose of providing assistance of counsel is not a bar

associate has violated the Federally Protected rights of the deprived as well as certain

anti-trust laws.

197

Conclusion

Determination by this court that the Constitution of the United States guarantees

benefit of assistance of counsel and prohibits compelling to contract, and that no statute,

rule, or law deprives an individual appearing in a civil case of choosing whomever they

wish as counsel without regard to purported credentials justly requires informing all

parties to this action that Marvin Merryweather is Constitutionally endowed with the

right to assistance of counsel without question.

Prepared and submitted by: __________________________________ Marvin R. Merryweather 0000 N. W. Indian Road # A Whitecloud, Kansas 67777

CERTIFICATE OF SERVICE

I, Marvin R. Merryweather, certify that on October ____, 2002, I mailed a true and correct copy of the above and foregoing motion to: Craig W. West _______________________ Marvin R. Merryweather

Using declarations

DECLARATION

Fifteen days (or whatever your answer time is) from the verifiable receipt of this

motion for summary judgment (or partial summary judgment) an order will be produced

and submitted to the court for ratification, unless within fifteen days the defendant (or

plaintiff) answers this motion for summary judgment by disputing the attached affidavit

and setting the matter for hearing.

This has two lawful results = victory for you or verifies on record that there is a

controversy compelling a trial.

198

SECTION ELEVEN: Resources A Black’s law dictionary is indispensable – the older the better Emanuel series, i.e., Emanuel on Civil Procedure US Code online Findlaw.com Versuslaw.com = $9.95 per month. Your state’s federal and state rules of civil procedure Pacer SECTION TWELVE: The Political Solution Oklahoma Judicial Accountability and Integrity Amendment

(a) Preamble. The People of Oklahoma find that complaints for willful misconduct have been lodged

with the Oklahoma Council For Judicial Complaints involving state judges without fair review or just

result. Due to conflicts of interest of judges judging themselves; judicial integrity, of major importance,

which affects all areas of our state, is severely compromised. Be it therefore resolved that the people of

Oklahoma hereby enact the following amendment to the Oklahoma Constitution, which shall be known

by the short title as "The Oklahoma Judicial Accountability and Integrity Amendment."

(b) Definitions. For purposes of this amendment:

1. The term "state judge" or "judge" shall mean any state Supreme Court justice, appellate court judge,

supreme court clerk or deputy clerk, supreme court or appellate court law clerk, district court judge,

special judge, district court clerk or deputy clerk, municipal judge, municipal court clerk or deputy clerk,

or any who act in a capacity of officer of the court, whether as an elected or appointed official.

2. The term "Juror" shall mean a juror for the Special Grand Jury for Oklahoma.

3. Acts which may result in actions include bad behavior as set forth by paragraphs (c) and (d) or a

criminal conviction. Where appropriate, the singular shall include the plural, and the plural the singular.

(c) Immunity. Notwithstanding common law or any other provision to the contrary, no immunities shall

be extended to any state judge except as specifically set forth in this statute. No immunity shielding a

state judge shall be construed to extend to any deliberate violation of law, fraud or conspiracy,

intentional violation of due process of law, deliberate disregard of material facts, acts without

jurisdiction, blocking of a lawful conclusion of a case, dismissal of a pro se litigant's petition for failure

to state a claim upon which relief can be granted, granting a summary judgment or default judgment

199

where the pleadings are unsupported by affidavit or where the party opposing the judgment has not had

opportunity to cross-examine the affiant under oath, or any deliberate violation of the Constitution of the

United States or the Constitution of the State of Oklahoma, all violations of which shall constitute bad

behavior. Courts' jurisdiction to make inquiry into qualification to practice law shall be limited to

criminal proceedings where insufficiency of counsel is a cause for appeal. Courts' authority to

summarily punish for contempt of court shall be limited to disobedience by an officer of the court,

obstreperous behavior during a jury trial, and refusal to testify after having been granted transactional

immunity. A Court Order prohibiting a pro se litigant from filing documents in any court unless done

through a bar admitted attorney shall be void on its face. A Court Order impairing any party for not

appearing through a bar admitted attorney shall be void on its face. Judges shall have no discretionary

authority to award attorney fees beyond fees expressly authorized under statute; prevailing party status

alone is insufficient to empower the court to add fees to a judgment. Judges shall have no discretionary

authority to depart from the Oklahoma Supreme Court’s mandated jury instructions. No judge shall

benefit directly or indirectly, including, but not limited to, a contribution to pension plan from the result

of any court action.

(d) Precedent being the historic method of judicial decision making and well regarded as a bulwark of

judicial independence, courts must abide by former precedents. Declaration of law is authoritative to the

extent necessary for courts' decisions and should be applied in subsequent cases to similarly situated

parties unless published as a new precedent. Superior courts, including the Oklahoma Supreme Court,

shall not avoid the precedential effect of prior decisions by ruling and determining on a “not for

publication” basis. Appellate records, including the records of certiorari review, shall include the

clerk's work product, the clerk's summary, and the clerk's recommendation. No records material to the

decision of an appellate tribunal or Supreme Court justice shall be excluded from the public record

unless the record is sealed; in which case, the appellant and appellee shall have access to the full record.

No appellate or Supreme Court decision shall be valid unless signed and dated. By signing a

memorandum of opinion, a judge of the Oklahoma Supreme Court of Appeals or an Oklahoma Supreme

Court judge is verifying under penalty of perjury that they have read all materials pertinent to the appeal

and certify that their decision is in harmony with the controlling authorities of Oklahoma. An

unpublished decision by an Oklahoma superior court which reverses or modifies a prior precedent shall

be void on its face, shall not be enforceable, and shall be regarded as blocking.

200

(e) Oaths. Every judge shall take the required oaths before each assignment, whether for a specified

term or as a visiting or temporary judge. A written copy of the Oath must be on file and available for

inspection at the judge’s place of service. The Oath shall include an oath in understanding that neither

the President of The United States, nor Congress, nor any govenor, nor any legislature, nor any other

governing body has lawful power or authority to subject non-military citizens of the United States to a

military court.

(f) Repeated reversals on appeal. The third time a judge is reversed on appeal where the cause for

reversal is not an issue of first impression, shall be grounds for removal from office. A judge’s only

defense for removal for repeated reversals on appeal shall be fraud on the court.

(g) Special Oklahoma Grand Jury. There is hereby created within Oklahoma a twenty-five member

Special Grand Jury for Oklahoma with full state geographical jurisdiction having power to judge on both

law and fact. Hereinafter, the Special Grand Jury for Oklahoma shall be referred to as "the Special

Grand Jury." The Special Grand Jury's responsibility shall be limited to determining, on an objective

standard, whether a civil suit against a state judge would be frivolous and harassing, or fall within the

exclusions of immunity as set forth herein, and whether there is probable cause of criminal conduct by

the state judge complained of.

(h) Counsel. The Special Grand Jury shall have exclusive power to retain non-governmental advisors,

special prosecutors, and investigators, as needed, who shall serve no longer than two years, after which

term said officers shall be ineligible. However, with permission of the Special Grand Jury, a special

prosecutor may prosecute their current cases through all appeals and any applicable complaints to the

Special Grand Jury.

(i) Filing Fees. Attorneys representing a client filing a civil complaint or answer before the Special

Grand Jury, shall, at the time of filing, pay a fee equal to the filing fee due in a civil appeal to the

Oklahoma State Supreme Court. Individuals filing a civil complaint or answer before the Special Grand

Jury in their own behalf as a matter of right, shall, at the time of filing, post a fee of one hundred dollars,

or file a declaration, which shall remain confidential, stating they are impoverished and unable to pay

such fee.

(j) Should the Special Grand Jury lack sufficient funding through fines, fees, and forfeitures, the

Oklahoma Legislature shall appropriate all the necessary funds for the implementation and maintenance

of the Special Grand Jury, first utilizing surpluses as articulated in the Comprehensive Annual Financial

Report.

201

(k) There shall be created a state office which shall be called Clerk and Treasurer for the Special Grand

Jury for Oklahoma, whose responsibility shall be to maintain records and deposits. The Clerk and

Treasurer shall have discretion to establish the site where the Special Grand Jury shall meet. All

meetings of the Special Grand Jury shall fall under the State Open Meetings Act.

(l) Compensation. Each Juror shall receive a salary commensurate to fifty percent of a state district

court judge, prorated according to the number of days actually served. The Clerk and Treasurer shall be

compensated a salary commensurate to a state judge.

(m) Annual Budget. The Clerk and Treasurer shall be responsible to maintain an annual budget and

submit the next year's annual budget to the Oklahoma Legislature's Appropriations Committee.

(n) Selection of Jurors. The Jurors shall serve without compulsion and shall be drawn by public lot by

the Clerk and Treasurer of the Special Grand Jury from names of Citizens submitting their names to the

Clerk and Treasurer for such drawing.

(o) Service of Jurors. Excluding the establishment of the initial Special Grand Jury, each Juror shall

serve one year. No Juror shall serve more than once within a five year period. On the first day of each

month, two persons shall be rotated off the Special Grand Jury and new Citizens seated, except in

January it shall be three. Vacancies shall be filled on the first of the following month, in addition to the

Jurors regularly rotated, and the Juror chosen to fill a vacancy shall complete only the remainder of the

term of the Juror replaced. A majority of thirteen shall determine any matter. Special State Grand Jury

files shall always remain public record following their final determination.

(p) Procedures. The Special Grand Jury shall serve a copy of the filed complaint upon the subject judge

and notice to the complainant of such service. The judge shall have thirty days to serve and file an

answer. The complainant shall have twenty days to reply to the judge's answer. (Upon timely request,

the Special Grand Jury may provide for extensions for good cause.) The Special Grand Jury shall have

power to subpoena witnesses, documents, and other tangible evidence, and to examine witnesses under

oath. The Special Grand Jury shall determine the causes properly before it with their reasoned findings

in writing within one hundred twenty (120) calendar days, serving on all parties their decision on

whether immunity shall be barred as a defense to any civil action that may thereafter be pursued against

the state judge. A rehearing may be requested of the Special Grand Jury within twenty days with service

upon the opposition. Twenty days shall be allowed to reply thereto. Thereafter, the Special Grand Jury

shall render final determination within thirty days. All allegations of the complaint shall be liberally

construed in favor of the complainant. The Jurors shall keep in mind, in making their decisions, that

202

they are entrusted by the people of Oklahoma with the duty of restoring a perception of justice and

accountability of the state judiciary, and are not to be swayed by artful presentation by the state judge.

They shall avoid all influence by judicial and government entities. The statute of limitations on any civil

suit brought pursuant to this statute against a state judge shall not commence until the rendering of a

final decision by the Special Grand Jury.

(q) Jurisdiction. The Special Grand Jury shall have exclusive power to establish rules assuring their

attendance, to provide internal discipline, replace members who resign or die, and to remove any of its

members on grounds of misconduct. The Clerk and Treasurer of the Special Grand Jury shall

immediately assign a docket number to each complaint brought before it.

(r) Qualifications of Jurors. A Juror shall have attained to the age of thirty years, and have been two

years a Citizen of Oklahoma, and an inhabitant of Oklahoma. Those not eligible for Special Grand Jury

service shall include elected and appointed officials, members of the Bar, judges (active or retired),

judicial, prosecutorial and law enforcement personnel, without other exclusion except previous

adjudication of mental incapacity, imprisonment, or parole from a conviction of a felonious crime

against persons.

(s) Public Indemnification. No state judge complained of, or sued civilly by a complainant pursuant to

this statute shall be defended at public expense or by any elected or appointed public counsel, nor shall

any state judge be reimbursed from public funds for any losses sustained under this statute.

(t) Redress. The provisions of this statute are in addition to other forms of redress that may exist and

are not mutually exclusive.

(u) Preeminence. Preeminence shall be given to this statute in any case of conflicts with any other state

statutes or case law to the contrary. The Jurors shall be of oath or affirmation to uphold this statute.

(v) Removal. Whenever any state judge shall have been determined to have behaved badly as defined

in paragraph (c) or (d), the Special Grand Jury shall be empowered to remove the state judge from

office. The state judge may also be held liable under any other appropriate criminal or civil proceeding.

(w) Indictment. Should the Special Grand Jury also find probable cause of criminal conduct on the part

of any state judge against whom a complaint is docketed, it shall have the power to indict such state

judge. The Special Grand Jury shall refer indicted state judges to appropriate authority for prosecution

or shall by unanimous consent invoke the powers of a special prosecutor.

(x) Not excluding any provision in the Oklahoma Judicial Accountability and Integrity Legislation

which may be to the contrary, all rules otherwise pertaining to grand juries in Oklahoma shall apply.

203

I leave you with two parting thoughts. I had an interesting conversation with my

friend Roger back in October of 2001. Roger’s grandfather, father, and brother were

career trial lawyers. Roger said in my complaining of the corruption of the legal system,

I was missing the point. Roger said the real problem in the legal industry is that most

lawyers and judges are just stupid. After two years of a stepped up pace in fighting the

evils of the legal industry, I have to confess; I think Roger is right.

Even if most lawyers and judges are stupid, we are not relieved of our duty to

learn, know, and understand the law. We have a magnificient legal system underneath all

the evil and corruption. The form of our system is not the problem. The problems, and

there are two, are being deprived of access and usage of our system, and those among us

who shy from the straight and narrow path of facts, law, and procedure. I estimate that I

had spent 2,500 hours in law libraries before producing Secrets of the Legal Industry. If

you are a seasoned hand, I hope this book enhances your knowledge and inspires you. If

you are a novice, I’d like to think this book will save you 2,000 hours in the law library.

You will still need to study and refine the elements of this book into your own folio.

DON’T FORGET TO GET A FIRM GRASP ON THE RULES, SUCH AS SERVICE

REQUIREMENTS!

I challege you to dream the impossible dream, then go to the courthouse and make

it happen. As my friend Ralph Winterrowd has said, “I’m not trying to overthrough the

government. The government has already been overthrown! I’m trying to get it back.”

Warmest regards,

Richard Luke Cornforth

A

Appendix

A brief overview of the law of voids in Arkansas

Appellee's attempted service of process was defective. Even if appellant was

aware of the 1988 proceeding, the Arkansas Supreme Court has "made it clear that actual

knowledge of a proceeding does not validate defective service of process." Green v.

Yarbrough, 299 Ark. 175, 771 S.W.2d 760 (1989); Wilburn v. Keenan Companies, Inc.,

298 Ark. 461, 768 S.W.2d 531 (1989); Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281

(1982). Accordingly, the trial court erred in refusing to vacate the default judgment which

had been entered based upon the defective service. Because no notice sufficient to satisfy

due process was obtained, the 1988 judgment was void. Void judgments have no legal

effect. Davis v. Office of Child Support Enforcement, 322 Ark. 352, 357, 908 S.W.2d

649, 652 (1995) (citing Rankin v. Schofield, 81 Ark. 440, 98 S.W. 674 (1905)). They are

worthless; no rights can be obtained from them and all proceedings founded upon them

are equally worthless. Therefore, all subsequent orders, garnishments, attempts at

revival, any and all actions flowing from the 1988 judgment are also void. The majority

holds that the trial court properly "concluded that the objection raised by the appellant to

the default judgment had been waived." Appellant's objection was that the trial court had

no jurisdiction to enter the default judgment. While I agree that it is possible for a party to

waive the defense of personal jurisdiction, see Arkansas Dep't of Human Servs. v. Farris,

309 Ark. 575, 832 S.W.2d 482 (1992), I find no authority, and the majority cites none,

for its proposition that personal jurisdiction is waived by a failure to appear in an action.

If anything, appellant preserved his defense by failing to appear. The majority cites

Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001), to support its reasoning that

the Arkansas Supreme Court would find that the facts of this case merely show a failure

to prove service. Yet both the majority and the dissenting opinions in Raymond require

that we hold the trial court lacked jurisdiction over the appellant and that the default

judgment is void. The Raymond majority explained it simply. Service of valid process is

necessary to give a court jurisdiction over a defendant. A summons is necessary to

satisfy due process requirements. Statutory service requirements, being in derogation of

B

common-law rights, must be strictly construed and compliance with them must be exact.

Proceedings conducted where the attempted service was invalid renders judgments

arising therefrom void ab initio. Even actual knowledge of a proceeding does not

validate defective process. The dissent's reasoning in Raymond also supports that the

case at bar be reversed, at 489, 36 S.W.2d at 738 (Imber, J., dissenting). Rules 12(b)(5)

and 12(h)(1) of the Rules of Civil Procedure clearly set forth the procedure for raising an

insufficiency-of-service-of-process defense (citing Sublett v. Hipps, 330 Ark. 58, 63, 952

S.W.2d 140 (1997)). Where a defendant believes that the trial court lacks personal

jurisdiction over him because of insufficient service of process, he may take one of three

actions to preserve that defense: (1) he may file a motion to dismiss the complaint against

him for failure to obtain service of process; (2) he may file a responsive pleading in

which he asserts the defense of insufficient service; or (3) he may simply choose not to

appear or to contest jurisdiction (emphasis added). Therefore, the trial court's decision

that appellant's objection had been waived is clearly erroneous as a matter of law. The

majority's reference to "the intermittent reliance on the judgment" has no effect on the

trial court's lack of jurisdiction to enter a default judgment in this case. Even a writ of

scire facias cannot breathe life into a void judgment: The legal effect of a judgment on a

scire facias, where judgments remain without process or satisfaction, is to remove the

presumption of payment arising from lapse of time. It adds nothing to the validity of the

former judgment, but simply leaves it as it was when rendered. The scire facias is

dependent for its legal existence upon a valid judgment; without it, the whole proceeding,

by scire facias, is a nullity. It is, therefore, perfectly immaterial to the merits of this case

whether the defendants appeared to the writ of scire facias or not. Pile, et al., 9 Ark. 336,

4 Eng. 336 (1849). Because the original default judgment is void due to lack of service, I

would reverse and remand with instructions to vacate the 1988 judgment and all

garnishments and orders entered pursuant to it. Adams v. Nationsbank, 74 Ark.App. 384,

49 S.W.3d 164 (Ark.App. 07/05/2001). A void judgment or decree is a mere nullity, and

has no force, either as evidence or by way of estoppel. The holding that a void judgment

may be attacked collaterally was reaffirmed in Chester v. Arkansas State Board of

Chiropractic Examiners, 245 Ark. 846, 435 S.W.2d 100 (1968). A judgment rendered

without jurisdiction is void. Cloman v. Cloman, 229 Ark. 447, 316 S.W.2d 817 (1958).

C

ARCP Rule 58 states: "[a] judgment or decree is effective only when so set forth and

entered as provided in Rule 79(a)." The comment to this rule points out that the date of

entry, as opposed to the date of rendition, is the effective date for appeal purposes.

However, the date of entry is not controlling in the present case because death

extinguished the jurisdiction of the court. It is not necessary to appeal from a void order,

because it never became effective. A void order is subject to collateral attack. Pendergist

v. Pendergist, 267 Ark. 1114, 593 S.W.2d 502 (1980). As a final argument, Daniel

asserts that laches prevents Diane from petitioning to set aside the divorce decree, at

least, by the time Diane signed the decree. In support of this contention, he cites Self v.

Self, 319 Ark. 632, 893 S.W.2d 775 (1995), for its statement that laches "has been applied

in numerous cases where one party has obtained an invalid divorce and remarried, but the

first spouse then waits too long under the facts of the particular case to assert her right to

have the void judgment vacated." Id. at 636. However, Self may be easily distinguished,

in that the initial divorce decree in Self was held to be merely voidable; in the instant

case, the decree was void ab initio. Certainly, when the May 12, 1997 decree was filed,

the 120-day period under Rule 4(i) had passed, and as discussed in detail above, the

reconciliation agreement did nothing to validate the service under the Rule. Thus,

Daniel's attempt to invoke laches as a defense is misplaced because the trial court had no

jurisdiction or authority to hear the cases in the first place. Raymond v. Raymond, 343

Ark. 480, 343 Ark. 480, 36 S.W.3d 733, 36 S.W.3d 733 (Ark. 02/01/2001). A judgment

rendered without notice to the parties is void; when there has been no proper service and,

therefore, no personal jurisdiction over the defendants in a case, any judgment is void ab

initio. Once the judgment in Mississippi was found to have been rendered without

jurisdiction over the defendants, such judgment was void; it was as though suit had never

been brought and there was no impediment to bringing the suit where personal

jurisdiction over the defendants could be had; a void judgment amounts to nothing and

has no force as res judicata. A void judgment amounts to nothing and has no force as res

judicata." Arkansas State Highway Commission v. Coffelt, 301 Ark. 112, 782 S.W.2d 45

(1990). Where there is no valid charging instrument, and yet the defendant is convicted

in a court of limited jurisdiction, there is a void judgment of conviction in the court of

limited jurisdiction; a void judgment cannot provide valid notice for a subsequent

D

proceeding in circuit court. The circuit court ruled that appellant appealed to circuit court

from a conviction in municipal court for third degree battery and, as a result, had notice

in the de novo circuit court hearing of the charge from which he appealed. We cannot

uphold the conviction on that basis. The conviction of a person for a crime with which he

was never charged constitutes a clear violation of the right to due process. Allen v. State,

310 Ark. 384, 838 S.W.2d 346 (1992). When there is no valid charging instrument, and

yet the defendant is convicted in a court of limited jurisdiction, there is a void judgment

of conviction in the court of limited jurisdiction. A void judgment cannot provide valid

notice for a subsequent proceeding in circuit court. Rector v. State, 6 Ark. 187 (1845).

Thus, the conviction in municipal court, if void, would not have provided notice of the

charge in circuit court. James Phillip HAGEN v. STATE of Arkansas, 864 S.W.2d 856

November 08, 1993. An erroneous judgment subject to direct attack does not impair its

effect as res judicata; a void judgment, however, amounts to nothing and has no force as

res judicata. The parties agree that an erroneous judgment subject to direct attack does

not impair its effect as res judicata; a void judgment, however, amounts to nothing and

has no force as res judicata. See Selig v. Barnett, 233 Ark. 900, 350 S.W.2d 176 (1961).

This continued requirement of the showing of a meritorious defense to a void judgment

now impresses us as somewhat inconsistent with our following the rule stated in

McDonald v. Fort Smith Western R. Co., 105 Ark. 5, 150 S.W. 135, to permit a judgment

to be disregarded as void on collateral attack. See Anderson v. Walker, 228 Ark. 113,

306 S.W.2d 318. If a judgment can be disregarded on collateral attack, there is no sound

reason why it should not be set aside on direct attack. The appellee first contends that the

appellant is pursuing the wrong remedy, in that he should have brought an action under

the statute to vacate the judgment after the expiration of the term. Ark. Stat. Ann. 29-506

(Repl. 1962). We have held, however, that the statute does not apply to a void judgment.

State v. West, 160 Ark. 413, 254 S.W. 828 (1923). The question then is whether the order

rendered by the State Board of Chiropractic Examiners was void. Since we consider the

answer to that question to be definitely in the affirmative on one point raised, there is no

necessity to discuss other arguments advanced by appellant in support of his. We hold

that the instrument was void because the hearing was held on Sunday. Dr. Kern E.

E

CHESTER v. ARKANSAS STATE BOARD OF CHIROPRACTIC EXAMINERS, 435 S.W.

2d 100, December 23, 1968.

SUMMARY OF THE LAW OF VOIDS IN CALIFORNIA

Motions to vacate void judgments may be made at any time after judgment,

(County of Ventura v. Tillett, supra, 133 Cal. App. 3d 105, 110). A judgment is void on

its face if the trial court exceeded its jurisdiction by granting relief that it had no power to

grant. Jurisdiction cannot be conferred on a trial court by the consent of the parties.

(Summers v. Superior Court (1959), 53 Cal. 2d 295, 298 [1 Cal. Rptr. 324, 347 P.2d 668];

Roberts v. Roberts (1966), 241 Cal. App. 2d 93, 101 [50 Cal. Rptr. 408].) Thus, the fact

that a judgment is entered pursuant to stipulation does not insulate the judgment from

attack on the ground that it is void. In People v. One 1941 Chrysler Sedan (1947), 81

Cal. App. 2d 18, 21-22 [183 P.2d 368], the court explained: "[P]rior to 1933 the

provisions of section 473 and of section 473a were contained in one section, so that there

was both a six-month and a one-year limitation found in the section, applicable, of

course, to different situations. In that year the original section 473 was split into two

parts. Old paragraph 3 of section 473 remained in that section. That paragraph refers to

judgments taken against a party through his 'mistake, inadvertence, surprise, or excusable

neglect,' and requires the motion to be made within six months. The paragraph has no

direct reference to void judgments. Section 473a (formerly and until 1933 a part of

section 473) provides for a particular situation -- where summons has not been personally

served (even though constructive service is permitted) the court may allow the aggrieved

party within one year to answer on the merits. Both the third paragraph of section 473

and section 473a are primarily directed to setting aside valid judgments. Prior to 1933,

section 473 contained no express provision relating to the power of courts to set aside

void judgments. But prior to that time the law was settled that courts of record possessed

inherent power to set aside a void judgment, whether or not it was void on its face,

provided that, as to a void judgment not void on its face, the motion was made within a

reasonable time. If the motion was not made within a reasonable time the party was

relegated to an action in equity. In determining whether the motion was made within a

F

reasonable time, the courts applied by analogy the one-year provision of old section 473,

now section 473a. Thus, when these old cases referred to the time limits of section 473

they were referring to the one-year limitation, not the six-month limitation. When the

Legislature revamped section 473 in 1933, and broke it down into two sections, they

added to section 473 paragraph 4. This paragraph was formerly section 900a of the Code

of Civil Procedure, applying to courts not of record. So far as pertinent here, that

paragraph now reads: 'The court may . . . on motion of either party after notice to the

other party, set aside any void judgment or order.' (For a discussion of the 1933

amendments to section 473, see Estate of Estrem, 16 Cal. 2d 563, 572 [107]. It is well

settled that erroneous final judgments serve as a bar to further litigation on the action,

whereas, in general, void judgments may be collaterally attacked. A void judgment or

order may properly be attacked at any time, directly or collaterally. We also conclude that

the doctrine of res judicata does not apply to void judgments or orders. We therefore

conclude that the trial court erred in sustaining defendants' demurrer and dismissing the

present action, accordingly, we reverse the judgment of dismissal. The doctrine of res

judicata is inapplicable to void judgments. "Obviously a judgment, though final and on

the merits, has no binding force and is subject to collateral attack if it is wholly void for

lack of jurisdiction of the subject matter or person, and perhaps for excess of jurisdiction,

or where it is obtained by extrinsic fraud. [Citations.]” (7 Witkin, Cal. Procedure, supra,

Judgment, § 286, p. 828.) “Section 437, subdivision (d), provides that a court, on noticed

motion, may set aside void judgments and orders. Courts also have inherent power to set

aside a void judgment. (Reid v. Balter (1993), 14 Cal. App. 4th 1186, 1194.)" “`It is well

settled that a judgment or order which is void on its face, and which requires only an

inspection of the judgment-roll or record to show its invalidity, may be set aside on

motion, at any time after its entry, by the court which rendered the judgment or made the

order. [Citations.]' [Citations.]" (Ibid; accord Plotitsa v. Superior Court (1983), 140 Cal.

App. 3d 755, 761 ["a default that is void on the face of the record when entered is subject

to challenge at any time irrespective of lack of diligence in seeking to set it aside within

the six-month period of section 473."]). As to such void judgments or orders, the normal

rule that "the perfecting of an appeal stays proceedings in the trial court upon the

judgment or order appealed from or upon the matters embraced therein or affected

G

thereby, including enforcement of the judgment or order" (§ 916, subd. (a)) “does not

apply.” "[A] court may set aside a void order at any time. An appeal will not prevent the

court from at any time lopping off what has been termed a dead limb on the judicial tree -

- a void order." (MacMillan Petroleum Corp. v. Griffin (1950), 99 Cal. App. 2d 523, 533

[222 P.2d 69]; accord: People v. West Coast Shows, Inc. (1970), 10 Cal. App. 3d 462,

467 [89 Cal. Rptr. 290]; Svistunoff v. Svistunoff (1952), 108 Cal. App. 2d 638, 641-642

[239 P.2d 650]; and see: 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 7, pp. 4024-

4025.) Consequently, notwithstanding the pending appeal from the earlier order of

November 25, 1969, which necessarily carried with it a consideration of the validity of

the judgment entered October 31, 1967, the order of August 14, 1970, limited to those

aspects which trim off the void judgment and orders, should be affirmed. The courts'

power to control their own judgments is statutory. (19 Cal. 2d at p. 573.) Apart from

statutory authority, the courts have the inherent power to correct clerical errors in their

judgments or to vacate void judgments. Defendant's motion was not made under section

473 of the Code of Civil Procedure, but was addressed to the inherent power of the court

to set aside void judgments. Although it has been held, by analogy to section 473a, that

such motions should be made within one year from the date the judgment sought to be set

aside was rendered (Washko v. Stewart, 44 Cal. App. 2d 311, 317 [112 P.2d 306]; Richert

v. Benson Lbr. Co., 139 Cal. App. 671, 674-676 [34 P.2d 840]) this time limitation does

not apply where the judgment is based on a fraudulent return. (Washko v. Stewart, supra,

p. 318; Richert v. Benson Lbr. Co., supra, p. 677.) Section 473 permits a trial court, on

noticed motion, to set aside void judgments and orders. Courts also possess inherent

power to grant such relief. (Reid v. Balter (1993), 14 Cal. App. 4th 1186, 1194.)

Because the order of dismissal was void on its face, it could be set aside at any time after

its entry, and the six-month time limitation in section 473 for relief from improper orders,

which is relied on by defendant in this appeal, is not applicable here. (Ibid.) The trial

court's examination of the record would show the dismissal was invalid because it would

show that the dismissal, under section 583.410, was not pursuant to a noticed motion, and

was premature. (Id. at p. 1193.) It is true that the statute of limitations does not apply to

a suit in equity to vacate a void judgment. (Cadenasso v. Bank of Italy, supra, p. 569;

Estate of Pusey, 180 Cal. 368, 374 [181 P. 648].) But this rule holds as to all void

H

judgments. In the other two cases cited, People v. Massengale and In re Sandel, the

courts hearing the respective appeals confirmed the judicial power and responsibility to

correct void judgments (in excess of jurisdiction).

A FEW OF THE MANY, MANY AUTHORITIES

ON THE LAW OF VOIDS IN COLORADO

Ordinarily, the decision whether to grant relief under C.R.C.P. 60(b) is entrusted to the

sound discretion of the trial court. However, "a motion under [C.R.C.P. 60(b)(3)] differs

markedly from motions under the other clauses of [C.R.C.P. 60(b)]." 10A Wright, §

2862, at 322-24. If the surrounding circumstances indicate that the defaulting party's due

process right was unfairly compromised by lack of notice of the default proceeding, then

relief under C.R.C.P. 60(b)(3) is mandatory. See Carter v. Fenner, 136 F.3d 1000, 1005

(5th Cir. 1998) (holding that under Fed. R. Civ. Pro. 60(b)(4) it is a per se abuse of

discretion for a lower court to uphold a void judgment); V.T.A., Inc., 597 F.2d at 224 &

n.8 ("If voidness is found, relief is not a discretionary matter; it is mandatory."); Small v.

Batista, 22 F. Supp.2d 230, 231 (S.D.N.Y. 1998) ("[U]nlike other motions made pursuant

to the other subsections of Rule 60(b), the court lacks discretion with respect to a motion

made under Rule 60(b)(4). Accordingly, our review of motions for relief under C.R.C.P.

60(b)(3) is de novo. See Carter, 136 F.3d at 1005. Relief under C.R.C.P. 60(b)(3) is

mandatory because a void judgment "is one which, from its inception, was a complete

nullity and without legal effect." Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453

F.2d 645, 649 (1st Cir. 1972); see also Weaver Constr., 190 Colo. at 232, 545 P.2d at

1045 ("It is an elementary principle of due process that where [a default judgment is

obtained without service of process] . . . the underlying judgment must be vacated in the

first instance, as a void judgment cannot be allowed to remain in effect pending the

outcome of a trial on the merits.") (Emphasis added). Consequently, there is no judgment

the propriety of which a court can review. Whether the judgment is void for failure to

provide notice in compliance with C.R.C.P. 55(b) depends on whether the factual

circumstances surrounding the default proceeding indicate that the defaulting party was

nonetheless aware that a default judgment was sought against it and that the defaulting

I

party had sufficient opportunity to be heard. C.R.C.P. 55(b) sets forth the due process

expectations of a party against whom a default judgment is sought. If the notice

provisions of C.R.C.P. 55(b) are not adhered to, then the presumption arises that the

defaulting party has suffered a due process violation that renders the judgment against it

void. However, before a judgment is set aside as void under C.R.C.P. 60(b)(3),

reviewing courts should carefully examine whether, though the literal requirements of

C.R.C.P. 55(b) were not adhered to, the defaulting party was nonetheless aware of the

default proceedings and was afforded a sufficient opportunity to be heard in defense. If

there is substantial evidence that the defaulting party had adequate notice of the default

proceedings despite failure of the moving party to comply with Rule 55(b), then the

purposes of Rule 55(b) are achieved and there is no basis for voiding the judgment. First

National Bank of Telluride v. Fleisher, 2 P.3d 706 (Colo. 05/30/2000). Although

defendant has now made an appearance in this action and is subject to the jurisdiction of

the court from the date he did so, his post-judgment appearance is not retroactive and

does not serve to validate the void judgment. See Weaver Construction Co. v. District

Court. We also reject plaintiff's argument that defendant's C.R.C.P. 60(b)(3) motion was

untimely. To the contrary, a void judgment may be challenged at any time pursuant to

C.R.C.P. 60(b)(3), and must be vacated upon request. See United Bank v. Buchanan, 836

P.2d 473 (Colo. App. 1992). We have considered the effect of a void judgment on

numerous occasions and have consistently held that a Judgment entered where

jurisdictional defects exist is a nullity. See, e.g., People v. Dillon, 655 P.2d 841 (Colo.

1982) ("It is axiomatic that any action taken by a court when it lacked jurisdiction is a

nullity." Davidson Chevrolet, Inc. v. City and County of Denver, 138 Colo. 171, 330

P.2d 1116 (1958) (same), cert. denied, 359 U.S. 926, 3 L. Ed. 2d 629, 79 S. Ct. 609

(1959); see also In re Marriage of Pierce, 720 P.2d 591 (Colo. App. 1985) (same).) The

issue presented here was addressed by this court in Don J. Best Trust v. Cherry Creek

National Bank, 792 P.2d 302 (Colo. App. 1990). In that case, a division of this court

concluded that a judgment entered against a garnishee, which was void because the writ

of garnishment was facially insufficient, could be attacked at any time. The court there

stated: "This Conclusion is based upon the consideration that a void judgment is no

judgment at all and, therefore, that the 'reasonable time' requirement of the rule 'means in

J

effect, no time limitation.'” See Mathews v. Urban, 645 P.2d 290 (Colo. App. 1982).

But see Martinez v. Dixon, 710 P.2d 498 (Colo. App. 1985) ("the clear language of

C.R.C.P. 60(b) requires that the motion must be filed within [a] reasonable time if it

alleges that the judgment is void"). However, it has been determined that the doctrine of

laches cannot be relied upon to preclude an attack upon a void judgment. Thompson v.

McCormick, 138 Colo. 434, 335 P.2d 265 (1959). Further, we have held that, if the

judgment sought to be vacated is void because the court lacked subject matter

jurisdiction, any time limit established by C.R.C.P. 60(b) is inapplicable. Mathews v.

Urban, 645 P.2d 290 (Colo. App. 1982). It has long been established as basic law that

the validity of a judgment depends upon the court's jurisdiction of the person and of the

subject matter of the particular issue it assumes to decide. Considering what is meant by

the term "jurisdiction," it is well settled that this term includes the court's power to enter

the judgment, and the entry of a decree which the court has no authority to enter is

without jurisdiction and void. A void judgment may be attacked directly or collaterally.

Newman v. Bullock, 23 Colo. 217, 47 Pac. 379; Atchison, Topeka and Santa Fe Railway

Co. v. Board of County Commissioners, 95 Colo. 435, 37 P (2d). The defendants, Ivan

and Molly Jenkins, appeal from a judgment of the Denver District Court holding them

liable to the plaintiff, Merchants Mortgage & Trust Corporation, on a promissory note.

The defendants challenge the judgment solely on the ground that the trial judge had no

authority to decide the case after he had taken office as a judge of the Colorado Court of

Appeals. We agree that the judgment is void, and we remand the case to the district court

for further proceedings. Merchants Mortgage & Trust Corporation filed a complaint in

Denver District Court to collect on a promissory note executed by the defendants. The

case was tried to the court before the Honorable Howard M. Kirshbaum on November 8

and 9, 1979. After trial, the judge took the matter under advisement. He was later

appointed to the Colorado Court of Appeals and was sworn in as a judge of that court on

January 11, 1980. On May 5, 1980, Judge Kirshbaum issued written findings of fact and

conclusions of law and ordered judgment against the defendants. The defendants did not

immediately challenge the judge's authority to act, but instead filed a motion for a new

trial on other grounds on May 27, 1980. The plaintiff also filed a post-trial motion,

seeking to alter or amend the judgment to allow recovery of its costs and attorney fees.

K

On November 14, 1980, Chief Justice Paul V. Hodges issued an order pursuant to Colo.

Const. Art. VI, § 5(3) appointing Judge Kirshbaum to hear and rule on the post-trial

motions. The defendants then filed two additional motions, entitled "Objection to

Jurisdiction" and "Motion to Void Judgment." In the first motion, the defendants asked

that Judge Kirshbaum decline to hear any post-judgment motions, arguing that Colo.

Const. Art. VI, § 5(3) does not authorize the chief justice to assign a court of appeals

judge to perform judicial duties in a district court. In the second motion, they contended

that the judgment of May 5, 1980, was void for lack of jurisdiction, again because the

Colorado Constitution does not allow a court of appeals judge to be assigned to sit as a

district court judge. On January 8, 1981, Judge Kirshbaum recused himself, and the case

was reassigned to Denver District Judge Harold D. Reed to hear and determine all post-

trial motions. Judge Reed denied the defendants' motions to void the judgment and for a

new trial, and granted the plaintiff's motion to alter or amend the judgment to include its

costs and attorney fees. The defendants then brought this appeal. We conclude that the

May 5, 1980, judgment is void and must be vacated Absent constitutional or statutory

authorization, a former district court judge does not have authority to act in a judicial

capacity, and orders entered by such a person after he ceases to be a district court judge

are void. See Olmstead v. District Court, 157 Colo. 326, 403 P.2d 442(1965) (a district

court judge whose term of office has expired lacks power to entertain a post-trial motion,

although he heard legal argument on the motion while still a judge). When Judge

Kirshbaum made his decision, neither this court nor the chief justice had authorized such

action. Since the chief justice's order of November 14, 1980, was expressly limited to the

post-trial motions filed after the May 5, 1980 judgment, it provides no authority to

support the judge's May 5 action. Because the judgment is void, the plaintiff's argument

that the judgment should not be reversed because of procedural error having no

prejudicial effect on the parties is inapposite. We also reject the plaintiff's argument that

the defendants should be estopped from challenging the validity of the judgment because

they acquiesced in its effectiveness until the chief justice's order was issued several

months later. The plaintiff's reliance on In Re Estate of Lee v. Graber, 170 Colo. 419, 462

P.2d 492 (1969) for its estoppel argument is misplaced. In that case, we held that a person

who invokes the jurisdiction of a court, obtains a decree, and acquiesces in the judgment

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for several years cannot assert its invalidity in a later action on the basis that the first

court had exceeded its authority because the amount in controversy exceeded its

jurisdictional limit. On the facts before us, we decline to extend the holding of Lee v.

Graber to a situation where the defendant challenges the judgment on the ground that the

judge had no power to order it. We held in Olmstead v. District Court, supra, that the

parties by their actions cannot confer power on a former judge who has no authority to

act, 157 Colo. at 330, 403 P.2d at 443, Merchants Mortgage & Trust Corp. v. Ivan R.,

659 P.2d 690 (Colo. 03/07/1983). A void judgment, it has no efficacy and may be treated

as a nullity. A void judgment is vulnerable to a direct or collateral attack regardless of the

lapse of time. A void judgment is a simulated judgment devoid of any potency because of

jurisdictional defects only, in the court rendering it. Defect of jurisdiction may relate to a

party or parties, the subject matter, the cause of action, the question to be determined, or

the relief to be granted. A judgment entered where such defect exists has neither life nor

incipience, and a court is impuissant to invest it with even a fleeting spark of vitality, but

can only determine it to be what it is -- a nothing, a nullity. Being naught, it may be

attacked directly or collaterally at any time. Stubbs v. McGillis, 44 Colo. 138, 96 Colo.

1005, 130 Am.S.R. 116, 18 L.R.A. N.S. 405. In Anderson v. Colorado Department of

Revenue, 44 Colo. App. 157, 615 P.2d 51 (1980), we held that a jurisdictional challenge

to a conviction may be raised at a driver's license revocation hearing because a void

judgment is subject to attack directly or collaterally at any time. Likewise, since a

conviction based on a guilty plea accepted in violation of Crim. P. 11(b) is

constitutionally infirm, it may be challenged in a later proceeding to impose a statutory

liability, see People v. Heinz, 197 Colo. 102, 589 P.2d 931 (1979), and such a challenge

may also be raised at a license revocation hearing.

A brief overview of the law of voids in Florida

Objections to a void judgment can be raised at any time. The final judgment

entered upon default in this case awarding un-liquidated damages without affording the

defaulting party notice and opportunity to be heard is a void judgment. Under the specific

provisions of rule 1.540(b) R.C.P., a motion to set aside a final judgment bottomed upon

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the reason that the judgment is void is not subject to the one-year limitation but must be

brought within a reasonable time. We glean from the record that defendant's motion to set

aside default and final judgment was filed when knowledge first came to the defendant

that the plaintiff was seeking satisfaction of the final judgment. Such, in our opinion, is

within the reasonable time requirement of the rule. Osceola, 238 So. 2d at 480 (emphasis

in original). While it is true that Rule 1.540(b)(4) states that a motion for relief from a

void judgment must be made within a "reasonable time," most courts have felt

constrained to interpret the "reasonable time" requirement of the rule to mean no time

limit when the judgment attacked is void. Assuming that a judgment is null and void for

lack of jurisdiction, does a Rule 1.540(b) motion for relief not brought within a

reasonable time have the effect of making a void judgment valid? The answer is "no."

Florida Rule of Civil Procedure 1.540 was acknowledged by its drafters to be

substantially the same as Federal Rule 60. Like a Rule 1.540 motion, a federal motion for

relief from a void judgment must be made within a "reasonable time." However, federal

courts have reasoned that since a void federal judgment can be collaterally attacked at

any time and because the judgment sustaining the collateral attack would have to be

given effect in a subsequent motion for relief to set aside the void judgment, the

"reasonable time" limitation must generally mean no time limitation, although there may

be exceptional circumstances where the reasonable time limitation would require

diligence on the part of the movant. See 7 Moore's Federal Practice, ¶ 60.25[4] (2d

Ed.1983). Whigham v. Whigham, 464 So. 2d 674, 676 (Fla. 5th DCA 1985). See also

Del Conte Enters., Inc. v. Thomas Pub. Co., 711 So. 2d 1268 (Fla. 3d DCA 1998);

Falkner, 489 So. 2d at 758. In addition, in DeClaire v. Yohanan, 453 So. 2d 375 (Fla.

1984), the Florida Supreme Court approved a chart which indicates that there is no time

limitation for attacking a void judgment under Rule 1.540(b). As we did in Kennedy v.

Richmond, we once again affirm that we agree with those cases, which, like Whigham

and Falkner, hold that a motion to vacate a void judgment under Rule 1.540 may be made

at any time. While there is language in Polani and Osceola which can be interpreted as

holding that a particular limitation applies to the time in which a motion to vacate a void

judgment must be filed, those cases are, to that extent, inconsistent with Florida Supreme

Court authority: A void judgment is a nullity . . . and is subject to collateral attack and

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may be stricken at any time. The passage of time cannot make valid that which has

always been void, but it can and often does render valid that which was merely voidable

or erroneously entered. Ramagli Realty Co., 121 So. 2d at 654. Appellee further

maintains that the trial judge's order in the instant case should be affirmed since, unlike

the defendants in cases like Polani and Osceola, Ward did not promptly file his motion to

vacate upon finding out about the judgment, but instead, waited almost eight months. For

all of the reasons previously discussed, we do not agree that the length of the delay in

filing a motion to vacate after learning of the entry of a void judgment is legally

significant, since it is well established that the passage of time cannot make valid that

which has been void from the beginning. See Ramagli Realty Co. v. Craver. For

instance, in Del Conte Enterprises, Inc. v. Thomas Publishing Co., 711 So. 2d 1268 (Fla.

3d DCA 1998), the defendant filed a motion to vacate an amended final judgment which

was entered against it although the defendant had not been served with process. Upon

learning of the final judgment, the defendant communicated informally with the plaintiff

in an attempt to have the judgments vacated, but did not file a motion to vacate the

judgment until over one year later. The plaintiff, Thomas Publishing Company,

responded that the defendant had not timely moved to vacate the judgment. The trial

court agreed that the judgment was void, but denied the motion to vacate because it was

not filed within a reasonable time. The Third District reversed and stated that because the

judgment was entered without service of process and was void, the fact that appellant

moved to vacate the judgment over one year after learning of it was "irrelevant." Id. at

1269. Accord Greisel v. Gregg, 733 So. 2d 1119, 1121 (Fla. 5th DCA 1999) (reversing

order denying motion to vacate void judgment, despite trial court's finding that six-year

delay in filing the motion to vacate after defendant learned of the judgment was

"unconscionable"). Appellant, Del Conte Enterprises, Inc. (the "appellant") appeals the

denial of a motion to vacate an amended consent final judgment entered in favor of

appellee, Thomas Publishing Company ("Thomas Publishing"). We reverse, because the

lack of proper service rendered the judgment void, and relief from a void judgment can

be granted at any time. In the case of East Auto Supply Co., Inc. v. Anchor Mortgage

Servs., Inc., 502 So.2d 976 (Fla. 4th DCA 1987), our sister court held that since a

reinstated corporation is treated as though it had never been dissolved, service upon a

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registered agent of a dissolved corporation is validated when a dissolved corporation is

reinstated. In this case the appellant was not reinstated until after the void judgment was

entered. At least to the extent that the holding in East Auto can be interpreted to mean

that reinstatement after the entry of a void judgment can validate that judgment we

disagree with our sister court. The judgment was void when entered and the fact that the

appellant had to seek reinstatement in order to file a motion for relief from that judgment

did not breathe life into it. See Gotshall v. Taylor, 196 So.2d 479 (Fla. 4th DCA), cert.

denied, 201 So.2d 558 (Fla. 1967). See also Falkner v. Amerifirst Fed. Sav. & Loan

Ass'n, 489 So.2d 758 (Fla. 3d DCA 1986). The appropriate procedure for attacking a

void judgment is by a motion for relief from judgment pursuant to Florida Rule of Civil

Procedure 1.540(b). Tucker, 389 So.2d at 684. Failure to allege such jurisdictional facts

is generally fatal. Service is void, and any judgment obtained is void. Hargrave v.

Hargrave, 495 So.2d 904 (Fla. 1st DCA 1986); Laney v. Laney, 487 So.2d 1109 (Fla. 1st

DCA 1986); Mouzon v. Mouzon, 458 So.2d 381 (Fla. 5th DCA 1984). Cf. Kimbrough v.

Rowe, 479 So.2d 867 (Fla. 5th DCA 1985). A void judgment obtained without personal

jurisdiction or subject matter jurisdiction may be set aside at any time. See Palmer v.

Palmer, 479 So.2d 221 (Fla. 5th DCA 1985). A judgment entered without notice to a

party is void. Falkner v. Amerifirst Fed. Sav. & Loan Ass'n, 489 So.2d 758 (Fla. 3d DCA

1986); cf. Grahn v. Dade Home Serv., Inc., 277 So.2d 544 (Fla. 3d DCA 1973) (where

plaintiffs' failure to timely comply with trial court's order resulted in the dismissal of the

complaint and entry of judgment against plaintiffs, the dismissal was reversed because

the record failed to show that plaintiffs received notice of order); McAlice v. Kirsch, 368

So.2d 401 (Fla. 3d DCA 1979) (default judgment was void for failure to give notice to

defendant even though defendant received original complaint which did not name him

and summons which was not addressed to him). See generally DeClaire v. Yohanan, 453

So.2d 375 (Fla. 1984) (general discussion of the origin, purpose and application of Fla. R.

Civ. P. 1.540(b)). Since the trial court specifically found that Shields had not received

notice of the trial, the judgment was void. Because relief from a void judgment may be

granted at any time, Falkner, 489 So.2d at 759, the trial court erred in denying Shields'

motion as untimely. Consequently, the void judgment should be vacated. Where a

judgment is vacated or set aside, it is as though no judgment had ever been entered. 49

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C.J.S. Judgments § 306 (1977). Florida Rule of Civil Procedure 1.540 states that all

motions for relief from judgment must be filed within a reasonable time and in some

situations not more than one year after the judgment was entered. However, if a judgment

or decree is void or it is not longer equitable that the judgment or decree should have

prospective application, the one year limitation does not apply. This court and other

Florida courts, both before and after the adoption of Florida Rule of Civil Procedure

1.540(b), have stated that a void judgment may be attacked "at any time" because a void

judgment creates no binding obligation upon the parties, is legally ineffective, and is a

nullity. See Watkins v. Johnson, 139 Fla. 712, 191 So. 2 (1939); Malone v. Meres, 91

Fla. 709, 109 So. 677 (1926); Whigham v. Whigham, 464 So.2d 674, 10 FLW 624 (Fla.

5th DCA Mar. 7, 1985); Florida Power & Light Co. v. Canal Authority, 423 So.2d 421

(Fla. 5th DCA 1982); Tucker v. Dianne Elect., Inc., 389 So.2d 683 (Fla. 5th DCA 1980);

T.J.K. v. N.B., 237 So.2d 592 (Fla. 4th DCA 1970). See also DeClaire v. Yohanan, 453

So.2d 375 (Fla. 1984) (where judgment is void, there is no time limitation under Rule

1.540(b)). Assuming that a judgment is null and void for lack of jurisdiction, does a Rule

1.540(b) motion for relief not brought within a reasonable time have the effect of making

a void judgment valid? The answer is "no." Florida Rule of Civil Procedure 1.540 was

acknowledged by its drafters to be substantially the same as Federal Rule 60. Like a Rule

1.540 motion, a federal motion for relief from a void judgment must be made within a

"reasonable time." However, federal courts have reasoned that since a void federal

judgment can be collaterally attacked at any time and because the judgment sustaining

the collateral attack would have to be given effect in a subsequent motion for relief to set

aside the void judgment, the "reasonable time" limitation must generally mean no time

limitation, although there may be exceptional circumstances where the reasonable time

limitation would require diligence on the part of the movant. See 7 Moore's Federal

Practice, P60.25[4] (2d Ed. 1983). "A void judgment or decree is not entitled to the

respect of a valid adjudication, and may be declared inoperative by any tribunal in which

effect is sought to be given it." A void adjudication has no legal or binding effect; it does

not impair, or create, rights; it is not entitled to enforcement, and is ordinarily no

protection to those who seek to enforce it. All proceedings founded on such an

adjudication are regarded as invalid, for a void judgment or decree is regarded as a

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nullity, as mere waste paper. The situation is the same as if there had been no

adjudication." Where such judgments or decrees rendered in this State against married

women are void (as is the personal judgment in this case rendered on mere promissory

notes for borrowed money) and the money so borrowed is not shown to have been used

so as to charge the separate property of the married woman in this State, under the

substantive law provisions of Section 1 and 2 of Article XI of the Florida Constitution,

such a void judgment in so far as it was rendered against the married woman and is

predicated upon promissory notes executed by her while a married woman and not a free

dealer under the laws of this State, may be quashed at any time by the court rendering the

decree or judgment. Such notes being void as a personal obligation of the married

woman, her failure to defend against the notes does not give validity to the judgment

against her on promissory notes that are void as a personal liability against her, when

such notes were not shown to have been executed for any of the substantive law purposes

named in Sections 1 and 2 of Article XI, Constitution, and she was not a free dealer under

the laws of Florida when the notes were executed. The judgment as against the married

woman being void when rendered, may be quashed as to her, at her instance when she

becomes a widow. A grantee of land from one having outstanding against her a void

judgment, may maintain a bill in equity to cancel a void judgment as a cloud upon its

title to the land. Where such a bill in equity may be maintained by the grantee of land, a

counter claim by the grantor to have the void judgment set aside, may likewise be

maintained, particularly under circumstances such as exist in this case. PROTECTIVE

HOLDING CORPORATION v. CORNWALL COMPANY (10/30/36), 173 So. 804, 127

Fla. 252.

A very brief overview of the law of voids in Georgia

A judgment void on its face may be attacked in any court by any person. Official

Code of Georgia Annotated, Vol. 7, 1993, page 525. A judgment void because of lack of

jurisdiction of the person or subject matter may be attacked at any time, Official Code of

Georgia Annotated, Vol. 7, 1993, page 526. Term "face of the record" has never been

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held to include papers involved in the litigation which are not a part of the record kept

under the authority and direction of the clerk of the court in which the suit is pending; the

phrase itself refers to the court record, not the file built up by litigants for their personal

use, Jennings v. Davis, 88 S.E. 2d 544 (1955). Attack on a void judgment may be made

directly in equity or collaterally, Wasden v. Rusco Indus., Inc., 211 S.E. 2d 733 (1975).

This section (Georgia code section 9-11-60) provides, generally, for collateral attack in

any court by any person where a judgment is void on its face - Official Code of Georgia

Annotated, Vol. 7, 1993, page 536. Judgment is "void on its face" when a non-

amendable defect appears on the face of the record or pleadings - Void judgment may

be attacked in any court by any person, Official Code of Georgia Annotated, Vol. 7,

1993, page 537. Punitive damages may be awarded only in tort actions, Code of Georgia,

51-12-5.1. An award of exemplary damages cannot stand where compensatory damages

were not awarded, Artis v. Crenshaw, 256 Ga. 488, 350 S.E. 2d 679 (1985) and Clarke v.

Cox, 197 Ga. App. 83, 397 S.E. 2d 598 (1990). Georgia law expressly provides for

punitive damages, but under Georgia law, three things are left for a jury to determine: (1)

When punitive damages shall be allowed, (2) the amount of such damages, and (3) the

purpose of the award as either to deter the wrongdoer from repeating the trespass or as

compensation for the wounded feelings of the plaintiff, Curtis Publishing Co. v. Butts,

351 F.2d 702 (5th Cir. 1965), aff'd 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094

(1967). Question of punitive damages is one for jury, King v. Towns, 102 Ga. App. 895,

118 S.E. 2d 121 (1960), Moon v. Georgia Power Co., 127 Ga. App. 524, 194 S.E. 2D

348 (1972), and Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734 (5th Cir. 1980).

Whether the aggravating circumstances of the alleged tort warrant the award to the

plaintiff of punitive damages is a question for the jury, Kelly v. Georgia Gas. ¶ Sur. Co.,

105 Ga. App. 104, 123 S.E. 2d 711 (1961) and Bonds v. Powl, 140 Ga. App. 140, 230

S.E. 2d 133 (1976). Punitive damages are only to be given if there be circumstances of

aggravation. Whether there be such circumstances or not, is a question for the jury, and

not the court, Townsend ¶ Ghegan Enters. v. W.R. Bean & Son, 117 Ga. App. 109, 159

S.E. 2d 776 (1968). Seventy-five percent of any amounts awarded under the punitive

damage section shall be paid into the treasury of the state. Punitive damages shall be

limited to a maximum of $250,000.00, Code of Georgia 51-12-5.1. 9-11-60 G *** CODE

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SECTION *** 12/03/01 9-11-60.(a) Collateral attack. A judgment void on its face may

be attacked in any court by any person.

Overview of the law of voids in Hawaii

Defendants' motion for Rule 60(b)(4) relief were not raised during the foreclosure

proceeding. However, this is excusable under the rule, because absent exceptional

circumstances, there is no time limit on a Rule 60(b)(4) attack on a judgment. See

Calasa v. Greenwell, 2 Haw. App. 395, 398, 633 P.2d 553, 555 (1981) ("Except in

exceptional situations, there is no time limit on an attack on a judgment as void."); see

also 11 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil § 2862, at

324-25 (2d ed. 1995) (construing the corresponding Federal Rule of Civil Procedure Rule

60(b)(4) by stating that "there is no time limit on an attack on a judgment as void . . . A

void judgment cannot acquire validity because of laches on the part of a judgment

debtor.") "A void judgment," the court declared, "is void no matter when." Granted, "[a]

void judgment is void no matter when." But "[a] judgment is not void because it [may

be] erroneous. It is void only if the court that rendered it lacked jurisdiction of the subject

matter, or of the parties, or if it acted in a manner inconsistent with due process of law."

11 C. Wright & A. Miller, Federal Practice and Procedure § 2862, at 198-200 (1973)

(footnotes omitted). Nothing in the record indicates the family court's decree was

afflicted with any of these infirmities. Thus, the circuit court erred in awarding the

defendants judgment. Cooper v. Smith, 70 Haw. 449 (Haw. 06/09/1989). Defendant has

grounds for setting aside the default judgment which meet the requirements of H.R.C.P.,

Rule 60(b)(4). There has been a denial of due process and the judgment is void. Plaintiff,

however, contends that defendant has failed to show a meritorious defense. But since the

judgment was void, defendant did not have to show a meritorious defense. 7 Moore,

Federal Practice, § 60.25(2) at 264 (2d ed.). See the following cases in which a void

judgment was ordered vacated upon motion without any discussion of the question

whether a meritorious defense was shown: Shilhan v. Ho, 40 Haw. 302; Gouveia v.

Nakamura, 13 Haw. 450; Phoenix Metals Corp. v. Roth, supra, 79 Ariz. 106, 284 P.2d

645. In Wise v. Herzog, 114 F.2d 486 (D.C. Cir.), it was held that a meritorious defense

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need not be shown when the attack on the void judgment was by motion in the original

suit. To the same effect are Schwarz v. Thomas, 222 F.2d 305 (D.C. Cir.) and Hicklin v.

Edwards, 226 F.2d 410 (8th Cir.). Cf., Perkins v. Sykes, supra, in which the ground for

setting aside the judgment was "surprise," and the circumstances were somewhat

different. Plaintiff's further contention is that defendant did not make his motion "within a

reasonable time" as required by Rule 60(b). The court below evidently held for plaintiff

on the ground that defendant delayed too long before making his motion. At most, there

was a delay of nine months. Considering that the defendant was outside the State and had

to determine how best to defend the California suit on the judgment, and considering also

that the serious defects in the proceedings prior to judgment were disclosed by the court's

own records, we are of the view that the delay was not a sufficient reason for denying the

motion. Defendant argues that the requirement that the motion be made in a reasonable

time does not apply to a motion to set aside a void judgment. See 7 Moore, Federal

Practice, § 60.25(4) (2d ed.); 3 Barron and Holtzoff, Federal Practice and Procedure,

§ 1327; cf., Baker v. Brown, 18 Haw. 22. In Aiona v. Wing Sing Wo Co., supra, 45 Haw.

427, 368 P.2d 879, we had occasion to note that the requirement that the motion be made

in a reasonable time is applicable even to the clauses of Rule 60(b) not governed by the

one-year limitation, and we find it unnecessary to decide in this case whether there is an

exception to that requirement when the judgment is void. Though the judgment must be

set aside, the further question arises: Should the entry of default be set aside? Here

H.R.C.P., Rule 55(c), is involved. The setting aside of a default judgment and the setting

aside of the entry of a default are two different things. White v. Sadler, supra, 350 Mich.

511, 87 N.W.2d 192; United States v. Edgewater Dyeing & Finishing Co., 21 F.R.D. 304

(E.D. Pa.). In the present case, however, unless the entry of the default is set aside the

denial of due process remains. It is not a case for the exercise of discretion. See Roller v.

Holly, 176 U.S. 398, 409, in which the court said: "The right of a citizen to due process of

law must rest upon a basis more substantial than favor or discretion." Hence the entry of

the default, like the default judgment, must be set aside. The doctrine of res judicata is

predicated upon a valid judgment and a void judgment may not be used to invoke its

application. Conway v. Sanset, 59 Misc. 2d 666, 300 N.Y.S.2d 243, 247 (1969); 46 Am.

Jur. 2d Judgments § 440. Generally, a default judgment constitutes a binding

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adjudication of all the rights of the parties embraced in the prayer for relief which arise

from the facts stated in the complaint. Yuen v. London Guar. & Acc. Co., Et Al., 40 Haw.

213, 222-23 (1953). Rule 54(c) of the Hawaii Rules of Civil Procedure codifies the rule.

It provides: Demand for Judgment. A judgment by default shall not be different in kind

from or exceed in amount that prayed for in the demand for judgment. Except as to a

party against whom a judgment is entered by default, every final judgment shall grant the

relief to which the party in whose favor it is rendered is entitled, even if the party has not

demanded such relief in his pleadings. By its plain meaning, HRCP Rule 54(c) restricts

the scope of relief that may be granted by default judgment to that specifically prayed for.

The Federal Rules of Civil Procedure upon which the Hawaii rule is based has been

similarly interpreted. A default judgment cannot give to the claimant greater relief than

the pleaded claim entitles him to and Rule 54(c) provides that such a judgment "shall not

be different in kind from or exceed in amount that prayed for in the demand for

judgment." Since the prayer limits the relief granted in a judgment by default, both as to

the kind of relief and the amount, the prayer must be sufficiently specific that the court

can follow the mandate of the Rule.

A BRIEF OVERVIEW OF THE LAW OF VOIDS, ILLINOIS

JURISDICTION

The Illinois Supreme Court, in Brown v. Van Keuren, 340 Ill. 118, 122 (1930), held that

"The petition required to put the court in motion and give it jurisdiction must be in

conformity with the statute granting the right and must show all the facts necessary to

authorize it to act, i.e., it must contain all the statements which the statute says the

petition shall state, and if the petition fails to contain all of these essential elements the

court is without jurisdiction."

SUBJECT-MATTER JURISDICTION IN COURTS PROCEEDING UNDER LIMITED

JURISDICTION

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Subject-matter jurisdiction is the authority of the court to hear and make a determination

in a court action. In Interest of M.V., 288 Ill.App.3d 300, 681 N.E.2d 532 (1st Dist.

1997).

Without subject-matter jurisdiction, all of the orders and judgments issued by a judge are

void under law, and are of no legal force or effect. In Interest of M.V., 288 Ill.App.3d

300, 681 N.E.2d 532 (1st Dist. 1997) ("Every act of the court beyond that power is

void.")

Under the current 1970 Illinois Constitution, all courts have general Jurisdiction;

however, in any proceeding based on an Illinois statute (whether divorce, adoption,

paternity, juvenile, probate, Illinois Appellate Courts, Federal Courts, Bankruptcy Court,

etc., i.e., in any statutory proceeding), the court immediately loses its general jurisdiction

powers and becomes a court governed by the rules of limited jurisdiction.

If subject-matter jurisdiction is denied, it must be proved by the party claiming that the

court has subject-matter jurisdiction as to all of the requisite elements of subject-matter

jurisdiction. A partial list of the elements in which the Court is without subject-matter

jurisdiction and all of its orders/judgments are void are:

(1) no Petition in the record of the case, Brown v. VanKeuren, 340 Ill. 118,

122 (1930),

(2) defective Petition filed, Brown v. VanKeuren, 340 Ill. 118, 122 (1930),

(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) a 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

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(1938); 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),

(8) if the court exceeded its statutory authority, Rosenstiel v. Rosenstiel,

278 F.Supp. 794 (S.D.N.Y. 1967),

(9) any acts in violation of 11 U.S.C. 362(a), In re Garcia, 109 B.R. 335

(N.D. Illinois, 1989),

(10) where no justiciable issue is presented to the court through proper

pleadings, Ligon v. Williams, 264 Ill.App.3d 701, 637 N.E.2d 633 (1st

Dist. 1994),

(11) where 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),

(12) where any litigant was represented before a court by a person/law firm

that is prohibited by law to practice law in that jurisdiction,

(13) when the judge is involved in a scheme of bribery (the Alemann cases,

Bracey v. Warden, U.S. Supreme Court No. 96-6133 (June 9, 1997),

(14) where a summons was not properly issued,

(15) where service of process was not made pursuant to statute and Supreme

Court Rules, Janove v. Bacon, 6 Ill.2d 245, 249, 218 N.E.2d 706, 708

(1955),

(16) when the Rules of the Circuit Court are not complied with,

(17) when the Local Rules of the special court are not complied with,

(18) where the judge does not act impartially, Bracey v. Warden, U.S. Supreme

Court No. 96-6133 (June 9, 1997),

(19) where the statute is vague, People v. Williams, 638 N.E.2d 207 (1st

Dist. 1994),

(20) when proper notice is not given to all parties by the movant, Wilson v.

Moore, 13 Ill.App.3d 632, 301 N.E.2d 39 (1st Dist. 1973),

(21) where an order/judgment is based 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

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(22) where the public policy of the State of Illinois is violated,

Martin-Tregona v. Roderick, 29 Ill.App.3d 553, 331 N.E.2d 100 (1st Dist.

1975).

In all courts of limited jurisdiction, the record of the case must support any claim of

subject-matter jurisdiction. If subject-matter jurisdiction does not appear from the record

of the case, the presiding judge is acting without subject-matter jurisdiction and his/her

orders are void, of no legal force or effect. State Bank of Lake Zurich v. Thill, 113 Ill.2d

294, 497 N.E.2d 1156 (1986) ("In determining whether a lack of jurisdiction is apparent

from the record, we must look to the whole record, which includes the pleadings, the

return on the process, the verdict of the jury, and the judgment or decree of the court.");

Wabash Area Development, Inc. v. Ind. Com., 88 Ill.2d 392 (1981) "that compliance with

the statutory requirements for the issuance of the writ must affirmatively appear in the

record."); I.C.R.R. Co. v. Hasenwinkle, 232 Ill.224, 227 (1908) ("The law presumes

nothing in favor of the jurisdiction of a court exercising special statutory powers, such as

those given by statute under which the court acted, (Chicago and Northwestern Railway

Co. v. Galt, 133 Ill. 657), and the record must affirmatively show the facts necessary to

give jurisdiction. The record must show that the statute was complied with."); In re

Marriage of Stefini, 253 Ill. App. 3d 196, 625 N.E.2d 358 (1st Dist. 1993) ("A judgment

is characterized as void and may be collaterally attacked at any time where the record

itself furnished the facts which establish that the court acted without jurisdiction.");

People v. Byrnes, 34 Ill.App.3d 983, 341 N.E.2d 729 (2nd Dist. 1975) ("Whereas a court

of general jurisdiction is presumed to have jurisdiction to render any judgment in a case

arising under the common law, there is not such presumption of jurisdiction in cases

arising under a specific statutory grant of authority. In the later cases the record must

reveal the facts which authorize the court to act."); Zook v. Spannaus, 34 Ill.2d 612, 217

N.E.2d 789 (1966) ("In the absence of such findings in the record and in the absence of

any evidence in the record to support such findings the court was without jurisdiction in

this special statutory proceeding to enter an order authorizing the guardian to consent to

adoption."); Fico v. Industrial Com., 353 Ill. 74 (1933) ("Where the court is exercising a

special statutory jurisdiction the record must show upon its face that the case is one

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where the court has authority to act."). In a court of limited jurisdiction, whenever a party

denies that the court has subject-matter jurisdiction, it becomes the duty and the burden

of the party claiming that the court has subject matter jurisdiction to provide evidence

from the record of the case that the court holds subject-matter jurisdiction. Bindell v. City

of Harvey, 212 Ill.App.3d 1042, 571 N.E.2d 1017 (1st Dist. 1991) ("The burden of

proving jurisdiction rests upon the party asserting it."). Until the plaintiff submits

uncontroversial evidence of subject-matter jurisdiction to the court that the court has

subject-matter jurisdiction, the court is proceeding without subject-matter jurisdiction.

Loos v. American Energy Savers, Inc., 168 Ill.App.3d 558, 522 N.E.2d 841 (1988)

("Where jurisdiction is contested, the burden of establishing it rests upon the plaintiff.")

The law places the duty and burden of subject-matter jurisdiction upon the plaintiff.

Should the court attempt to place the burden upon the defendant, the court has acted

against the law, violates the defendant's due process rights, and the judge under court

decisions has immediately lost subject-matter jurisdiction. In a court of limited

jurisdiction, the court must proceed exactly according to the law or statute under which it

operates. Flake v. Pretzel, 381 Ill. 498, 46 N.E.2d 375 (1943) ("The actions, being

statutory proceedings . . . were void for want of power to make them.") ("The judgments

were based on orders which were void, because the court exceeded its jurisdiction in

entering them. Where a court, after acquiring jurisdiction of a subject matter, as here,

transcends the limits of the jurisdiction conferred, its judgment is void."); Armstrong v.

Obucino, 300 Ill. 140, 143, 133 N.E. 58 (1921) ("The doctrine that where a court has

once acquired jurisdiction it has a right to decide every question which arises in the

cause, and its judgment or decree, however erroneous, cannot be collaterally assailed, is

only correct when the court proceeds according to the established modes governing the

class to which the case belongs and does not transcend in the extent and character of its

judgment or decree the law or statute which is applicable to it." In Interest of M.V., 288

Ill.App.3d 300, 681 N.E.2d 532 (1st Dist. 1997) ("Where a court's power to act is

controlled by statute, the court is governed by the rules of limited jurisdiction, and courts

exercising jurisdiction over such matters must proceed within the strictures of the

statute."); In re Marriage of Milliken, 199 Ill.App.3d 813, 557 N.E.2d 591 (1st Dist.

1990) ("The jurisdiction of a court in a dissolution proceeding is limited to that conferred

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by statute."); Vulcan Materials Co. v. Bee Const. Co., Inc., 101 Ill.App.3d 30, 40, 427

N.E.2d 797 (1st Dist. 1981) ("Though a court be one of general jurisdiction, when its

power to act on a particular matter is controlled by statute, the court is governed by the

rules of limited jurisdiction."); In re M.M., 156 Ill.2d 53, 619 N.E.2d 702 (1993) ("The

legislature may define the `justiciable matter' in such a way as to preclude or limit the

authority of the circuit court. When a court's power to act is controlled by statute, the

court is governed by the rules of limited jurisdiction and courts exercising jurisdiction

over such matters must proceed within the strictures of the statute."); Brown v.

VanKeuren, 340 Ill. 118, 122 (1930) ("Whatever the rank of the court exercising a special

statutory jurisdiction, it is governed by the same rules as courts of limited jurisdiction.");

Midland Coal Co. v. Knox County, 268 Ill.App.3d 485, 644 N.E.2d 796 (4th Dist. 1994)

("Special statutory jurisdiction is limited to the language of the act conferring it, and the

court has no powers from any other source . . . [T]he authority of the court to make any

order must be found in the statute. Levy v. Industrial Comm'n (1931), 346 Ill. 49, 51, 178

N.E. 370, 371."); Skilling v. Skilling, 104 Ill.App.3d 213, 482 N.E.2d 881 (1st Dist. 1982)

("The legislature prescribes that a court's jurisdiction to hear and determine controversies

involving a statutory right is limited in that certain facts must exist before a court can act

in any particular case."); Keal v. Rhydderick, 317 Ill. 231 (1925) ("Court exercising a

special statutory jurisdiction, it is governed by the same rules as courts of limited

jurisdiction."); In re Chiara C., 279 Ill.App.3d 761, 765 (1996) ("Thus, in cases where a

court's power to act is controlled by statute, the court is governed by the rules of limited

jurisdiction [citations], and the courts exercising jurisdiction over such matters must

proceed within the strictures of the statute."); Johnson v. Theis, 282 Ill.App.3d 966, 669

N.E.2d 590 (2nd Dist. 1996) ("A court in the exercise of special statutory jurisdiction is

limited in its power by the language of the act conferring such jurisdiction."); In Interest

of Rami M., 285 Ill.App.3d 267, 673 N.E.2d 358 (1st Dist. 1996) ("In cases where the

court is conferred power to adjudicate by virtue of a statute, the court's jurisdiction is

strictly limited by the statute.") All orders or judgments issued by a judge in a court of

limited jurisdiction must contain the findings of the court showing that the court has

subject-matter jurisdiction, not allegations that the court has jurisdiction. In re Jennings,

68 Ill.2d 125, 368 N.E.2d 864 (1977) ("In a special statutory proceeding, an order must

AA

contain the jurisdictional findings prescribed by statute."); Zook v. Spannaus, 34 Ill.2d

612, 217 N.E. 2d 789 (1966); State Bank of Lake Zurich v. Thill, 113 Ill.2d 294, 497

N.E.2d 1156 (1986). A judge's allegation that he has subject-matter jurisdiction is only

an allegation, (Lombard v. Elmore, 134 Ill.App.3d 898, 480 N.E.2d 1329 (1st Dist. 1985);

Hill v. Daily, 28 Ill.App.3d 202, 204, 328 N.E.2d 142 (1975)); inspection of the record of

the case has been ruled to be the controlling factor. If the record of the case does not

support subject-matter jurisdiction, then the judge has acted without subject-matter

jurisdiction. The People v. Brewer, 328 Ill. 472, 483 (1928) ("If it could not legally hear

the matter upon the jurisdictional paper presented, its finding that it had the power can

add nothing to its authority, - it had no authority to make that finding.") Without the

specific findings of jurisdiction by the court in an order or judgment, the order or

judgment does not comply with the law and is void. Since a void order has no legal force

or effect there can be no time limit within which to challenge the order or judgment.

Further, since the order has no legal force or effect, it can be repeatedly challenged, since

no judge has the lawful authority to make a void order valid. Bates v. Board of

Education, Allendale Community Consolidated School District No. 17, 136 Ill.2d 260,

267 (1990) (A court "cannot confer jurisdiction where none existed and cannot make a

void proceeding valid."); People ex rel. Gowdy v. Baltimore & Ohio R.R. Co., 385 Ill. 86,

92, 52 N.E.2d 255 (1943). It is clear and well established law that a void order can be

challenged in any court. Old Wayne Mut. L. Assoc. v. McDonough, 204 U.S. 8, 27 S.Ct.

236 (1907) ("Jurisdiction of any court exercising authority over a subject 'may be

inquired into in every other court when the proceedings in the former are relied upon and

brought before the latter by a party claiming the benefit of such proceedings,' and the rule

prevails whether 'the decree or judgment has been given, in a court of admiralty,

chancery, ecclesiastical court, or court of common law, or whether the point ruled has

arisen under the laws of nations, the practice in chancery, or the municipal laws of

states.'"); In re Marriage of Macino, 236 Ill.App.3d 886 (2nd Dist. 1992) ("If the order is

void, it may be attacked at any time in any proceeding."); Evans v. Corporate Services,

207 Ill.App.3d 297, 565 N.E.2d 724 (2nd Dist. 1990) ("A void judgment, order or decree

may be attacked at any time or in any court, either directly or collaterally."); Oak Park

Nat. Bank v. Peoples Gas Light & Coke Col, 46 Ill.App.2d 385, 197 N.E.2d 73, 77 (1st

BB

Dist. 1964) ("that judgment is void and may be attacked at any time in the same or any

other court, by the parties or by any other person who is affected thereby."). It is also

clear and well established law that a void order can be challenged in any court at any

time. People v. Wade, 116 Ill.2d 1, 506 N.E.2d 954 (1987) ("A void judgment may be

attacked at any time, either directly or collaterally."); In re Marriage of Macino, 236

Ill.App.3d 886 (2nd Dist. 1992) ("if the order is void, it may be attacked at any time in

any proceeding,"; Evans v. Corporate Services, 207 Ill.App.3d 297, 565 N.E.2d 724 (2nd

Dist. 1990) ("A void judgment, order or decree may be attacked at any time or in any

court, either directly or collaterally"). The law is well-settled that a void order or

judgment is void even before reversal. Vallely v. Northern Fire & Marine Ins. Co., 254

U.S. 348, 41 S.Ct. 116 (1920) ("Courts are constituted by authority and they cannot go

beyond that power delegated to them. If they act beyond that authority, and certainly in

contravention of it, their judgments and orders are regarded as nullities. They are not

voidable, but simply void, and this even prior to reversal."); Old Wayne Mut. L. Assoc. v.

McDonough, 204 U.S. 8, 27 S.Ct. 236 (1907); Williamson v. Berry, 8 How. 495, 540, 12

L. Ed. 1170, 1189 (1850); Rose v. Himely, 4 Cranch 241, 269, 2 L. Ed. 608, 617 (1808).

PERSONAM JURISDICTION

In addition to the mandatory requirement of having subject-matter jurisdiction, a court

needs to acquire in personam jurisdiction over the respondent/defendant. Any order

issued by a judge when both subject-matter jurisdiction and in personam jurisdiction have

not been properly conferred is void, of no legal force or effect. In personam jurisdiction

is obtained when the respondent/defendant is properly served either by certified mail, by

personal service, or by publication (only rarely used and only when the address of the

respondent/defendant is unknown). (Illinois) Personal service occurs whenever the

sheriff or a person appointed by the court serves a copy of a legal summons and a copy of

a legal Petition/Complaint directly upon the respondent/defendant or upon any person

from his/her immediate family who is 13 years of age or over. Personal service upon any

other person is not personal service on the respondent; the service is defective and does

not confer in personam jurisdiction upon the court. Just as in subject-matter jurisdiction,

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if challenged, an inspection of the record of the case must show that legal service had

been made upon the respondent/defendant. Contrary to some allegations, the appearance

of a respondent/defendant in the court when proper legal service had not been obtained

does not confer jurisdiction upon the court. Mere notice is not legal notice. Without both

subject-matter jurisdiction and in personam jurisdiction having been obtained, the

proceeding is only a sham proceeding, having no legal force or effect. Even if one

participates in the sham proceeding, no in personam jurisdiction has been conferred upon

the court. The person is legally only an observer to a sham proceeding. However, if

proper legal service upon the respondent had been obtained, and if the court also held

subject-matter jurisdiction, then the appearance by the respondent or his/her attorney

confers in personam jurisdiction upon the court. The respondent then has made a general

appearance before the court. Until the court obtains lawful in personam jurisdiction, all

orders of the court are void, of no legal force or effect.

QUESTION "PURPORTED" AUTHORITY, BUT RESPECT ACTUAL AUTHORITY

If the judge does not have judicial authority to hear and rule on a matter, the court is

considered coram non judice, and the judge is a trespasser of the law and, under the law,

is acting as an imposter. The judge is therefore acting unlawfully. Under U.S. Supreme

Court decisions, the judge would be acting in treason to the Constitution. As to

policemen, the Illinois Supreme Court has held that, under certain circumstances, they

could be sued personally for what they did not do. In the past, under certain

circumstances, they could be sued personally only for what they did. Police and sheriffs

now should question their own authority when they act, or when they do not act, to

prevent their being personally sued. You should also properly question their authority.

Prosecutors and court reporters, who in the past believed that they had immunity from

lawsuits, now, in certain circumstances, have had their immunity stripped from them.

Obey people with actual Authority, but they should first prove that they have actual

Authority. Question "purported" Authority.

DD

CONFLICT OF INTEREST

"[J]ustice must satisfy the appearance of justice," Levine v. United States, 362 U.S. 610,

80 S.Ct. 1038 (1960), citing Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13

(1954).

JUDGES AS CRIMINALS

Judges who do not report the criminal activities of other judges become principals in the

criminal activity, 18 U.S.C. Section 1. Since no judges have reported the criminal

activity of the judges who have been convicted, the other judges are as guilty as the

convicted judges.

JUDICIAL IMMUNITY

Judges have given themselves judicial immunity for their judicial functions. Judges have

no judicial immunity for criminal acts, aiding, assisting, or conniving with others who

perform a criminal act, or for their administrative/ministerial duties. When a judge has a

duty to act, he does not have discretion - he is then not performing a judicial act, he is

performing a ministerial act. Judicial immunity does not exist for judges who engage in

criminal activity, for judges who connive with, aid and abet the criminal activity of

another judge, or to a judge for damages sustained by a person who has been harmed by

the judge's connivance with aiding and abetting another judge's criminal activity.

TRESPASSERS OF THE LAW

Should the judge not have subject-matter jurisdiction, then the law states that the judge

has not only violated the law, but is also a trespasser of the law. Von Kettler, et.al., v.

Johnson, 57 Ill. 109 (1870) ("If the magistrate has not such jurisdiction, then he and those

who advise and act with him, or execute his process, are trespassers."); Elliott v. Peirsol,

1 Pet. 328, 340, 26 U.S. 328, 340 (1828) ("Without authority, its judgments and orders

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are regarded as nullities. They are not voidable, but simply void; and form no bar to a

recovery sought, even prior to a reversal in opposition to them. They constitute no

justification; and all persons concerned in executing such judgments or sentences, are

considered, in law, as trespassers. This distinction runs through all the cases on the

subject; and it proves, that the jurisdiction of any court exercising authority over a

subject, may be inquired into in every court, when the proceedings of the former are

relied on and brought before the latter, by the party claiming the benefit of such

proceedings."); In re TIP-PA-HANS Enterprises, Inc., 27 B.R. 780, 783 (1983) (A judge

"lacks jurisdiction in a particular case until it has been demonstrated that jurisdiction over

the subject matter exists.") (When a judge acts "outside the limits of his jurisdiction, he

becomes a trespasser ...") ("... courts have held that where courts of special or limited

jurisdiction exceed their rightful powers, the whole proceeding is coram non judice ...")

Trespasser - "One who enters upon property of another without any right, lawful

authority, or express or implied invitation, permission, or license, not in performance of

any duties to owner, but merely for his own purpose, pleasure or convenience. Mendoza

v. City of Corpus Christi, Tex. App. 13 Dist., 700 S.W.2d 652, 654." Black's Law

Dictionary, 6th Edition, page 1504. The Illinois Supreme Court held that if a court

"could not hear the matter upon the jurisdictional paper presented, its finding that it had

the power can add nothing to its authority, - it had no authority to make that finding."

The People v. Brewer, 128 Ill. 472, 483 (1928). When judges act when they do not have

jurisdiction to act, or they enforce a void order (an order issued by a judge without

jurisdiction), they become trespassers of the law, and are engaged in treason (see below).

The Court in Yates v. Village of Hoffman Estates, Illinois, 209 F. Supp. 757 (N.D. Ill.

1962) held that "not every action by a judge is in exercise of his judicial function. . . . it

is not a judicial function for a judge to commit an intentional tort, even though the tort

occurs in the courthouse." When a judge acts as a trespasser of the law, when a judge

does not follow the law, the judge loses subject-matter jurisdiction and the judge’s orders

are void, of no legal force or effect. The U.S. Supreme Court, in Scheuer v. Rhodes, 416

U.S. 232, 94 S.Ct. 1683, 1687 (1974), stated that "when a state officer acts under a state

law in a manner violative of the Federal constitution, he "comes into conflict with the

superior authority of that Constitution, and he is in that case stripped of his official or

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representative character and is subjected in his person to the consequences of his

individual conduct. The State has no power to impart to him any immunity from

responsibility to the supreme authority of the United States." By law, a judge is a state

officer. The judge then acts not as a judge, but as a private individual (in his person).

VIOLATION OF OATH OF OFFICE

In Illinois, 705 ILCS 205/4 states, "Every person admitted to practice as an attorney and

counselor at law shall, before his name is entered upon the roll to be kept as hereinafter

provided, take and subscribe an oath, substantially in the following form: 'I do solemnly

swear (or affirm, as the case may be), that I will support the constitution of the United

States and the constitution of the state of Illinois, and that I will faithfully discharge the

duties of the office of attorney and counselor at law to the best of my ability.'" In Illinois,

a judge must take a second oath of office. Under 705 ILCS 35/2, it states, in part, that

"The several judges of the circuit courts of this State, before entering upon the duties of

their office, shall take and subscribe the following oath or affirmation, which shall be

filed in the office of the Secretary of State: 'I do solemnly swear (or affirm, as the case

may be) that I will support the constitution of the United States, and the constitution of

the State of Illinois, and that I will faithfully discharge the duties of judge of court,

according to the best of my ability.'" Further, if the judge had enlisted in the U.S.

military, then he has taken a third oath. Under Title 10 U.S.C. Section 502, the judge had

subscribed to a lifetime oath, in pertinent part, as follows: "I, __________, do solemnly

swear (or affirm) that I will support and defend the Constitution of the United States

against all enemies, foreign or domestic; that I will bear true faith and allegiance to the

same; ...". The U.S. Supreme Court has stated that "No state legislator or executive or

judicial officer can war against the Constitution without violating his undertaking to

support it." Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958). Any judge who does not

comply with his oath to the Constitution of the United States wars against that

Constitution and engages in acts in violation of the Supreme Law of the Land. The judge

is engaged in acts of treason. Having taken at least two, if not three, oaths of office to

support the Constitution of the United States, and the Constitution of the State of Illinois,

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any judge who has acted in violation of the Constitution is engaged in an act or acts of

treason. If a judge does not fully comply with the Constitution, then his orders are void,

In re Sawyer, 124 U.S. 200 (1888), he/she is without jurisdiction, and he/she has engaged

in an act or acts of treason.

TREASON

Whenever a judge acts where he/she does not have jurisdiction to act, the judge is

engaged in an act or acts of treason. U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66

L. Ed.2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L. Ed 257

(1821). Any judge or attorney who does not report such judges for treason as required by

law may themselves be guilty of misprision of treason, 18 U.S.C. Section 2382.

RULE 23 ORDERS COVER UP JUDICIAL MISCONDUCT

Justices of the Illinois First District Appellate Court use Rule 23 Orders to cover up their

Judicial Misconduct. Justices of other Illinois Appellate Courts may also use Rule 23

Orders the same way, but, at this time, no person has presented Citizens with any

documentation that it occurs in other Districts. What is a Rule 23 Order? It is an

unpublished Order issued by an Illinois Appellate Court or the Illinois Supreme Court, so

that the general public and lawyers in general do not read of the misconduct occurring in

these courts. Probably if you have appealed a decision of the trial court, and the

reviewing court issued a Rule 23 Order, you may have actually won your case, based on

the law, but the reviewing court engaged in misconduct in covering up either the

misconduct of the trial court judge, or where the reviewing judges did not know the law,

or where the reviewing justices had taken a bribe (the law states that a bribe does not

need to be money - Black's Law Dictionary). Most litigants do not understand the law

sufficiently to know if the Rule 23 Order was valid or was void. If it is void, you have a

legal right to open that appeal again, in any court, in any State, and all actions taken,

based on that void order, are themselves void, of no legal force or effect. No person,

HH

bank, title company, etc., can rely on the order. As an example, should the judge order a

house to be sold, and the judge did not have jurisdiction to do so, then even though

another party believes that they have purchased the property, the legal owner of the

property is the party from which the judge unlawfully took the property. Most judges and

attorneys pretend not to understand jurisdiction, as it deprives them of purported

authority. As only one example, an order is void if proper legal notice is not given to the

opposing party. An order is void if an attorney withdraws without first delivering to you

all documents in his care, custody, or control which you may need to proceed with the

case on your own, pro se, unless you have employed another attorney to handle your case

before the order granting withdrawal is actually granted. Your attorney(s) may not have

informed you that the Rule 23 Order was not legal, since the attorney(s) by law must

protect the courts or be disbarred. Who loses? You, the litigant, and justice. Did the

justices of the Appellate Court have lawful authority (jurisdiction) to issue that Rule 23

Order? If they did not have jurisdiction, a jurisdiction conferred only by law, then they

have no legal right to issue that Rule 23 Order. That Order is void, of no legal force or

effect, and legally does not exist.

APPELLATE JURISDICTION

The Illinois Appellate Court is a court governed by the rules of limited jurisdiction,

therefore, the Justices must first accurately determine if the appeal falls within their scope

of jurisdiction. The Justices must first determine that the Notice of Appeal was filed

within 30 days of a final order, that the trial court's order is truly a final order, and must

first determine that the trial court actually was conferred subject-matter jurisdiction based

on law. If the Justices should hear and rule on any appeal where the reviewing court was

not properly conferred with subject-matter jurisdiction, then the order of the court has no

legal validity. The reviewing court must first make a determination of its jurisdiction

before it can legally issue any valid order. There is a presumption, under law, that a court

governed by the rules of limited jurisdiction is without subject-matter jurisdiction. When

jurisdiction is challenged, the party claiming that the court has jurisdiction has the legal

burden to prove that jurisdiction was conferred upon the court through the proper

II

procedure. Otherwise, the court is without jurisdiction. Should the justices of the

appellate court act without jurisdiction, the U.S. Supreme Court has ruled that the justices

are engaged in treason. The Illinois Supreme Court has stated that the term "Law"

denotes court rules as well as statutes, constitutional provisions and decisional law. Court

Rules include Supreme Court Rules, Code of Judicial Conduct, Rules of Professional

Conduct (for attorneys), and local Rules of the Court. The Code of Judicial Conduct,

Rule 62(A), requires a Justice to comply with the law. When a Justice does not comply

with the law, he/she violates the law and the Code of Judicial Conduct, and should be

reported. Under certain circumstances, he loses subject-matter jurisdiction and has no

lawful authority. In fact, he has engaged in treason. In the other circumstances, he/she

acts as a criminal in violating the law. It is wrong for a Justice to act in either

circumstance. Whenever a judge acts where he/she does not have jurisdiction to act, the

judge is engaged in an act or acts of treason. U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct.

471, 66 L. Ed.2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.

Ed 257 (1821). Any judge or attorney who does not report such judges for treason as

required by law, may themselves be guilty of misprision of treason, 18 U.S.C. Section

2382. If a judge does not fully comply with the Constitution, then his orders are void, In

re Sawyer, 124 U.S. 200 (1888), he/she is without jurisdiction, and he/she has engaged in

an act or acts of treason. The U.S. Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232,

94 S.Ct. 1683, 1687 (1974), stated that "when a state officer acts under a state law in a

manner violative of the Federal Constitution, he "comes into conflict with the superior

authority of that Constitution, and he is in that case stripped of his official or

representative character and is subjected in his person to the consequences of his

individual conduct. The State has no power to impart to him any immunity from

responsibility to the supreme authority of the United States."

THE LAW OF VOIDS BACK HOME IN INDIANA

As to an act or omission rendering the judgment void, it is well settled that even though a void

judgment is a nullity and may be ignored by those whose rights are attempted to be affected thereby, a

court will not permit such a judgment to encumber the record, but will vacate the ineffectual entry

thereof on proper application, although the application is made after the term of the rendition of the

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judgment. Even the lapse of a period of years does not necessarily preclude relief, which is sometimes

declared available regardless of what length of time has intervened since the rendition of the judgment.

Laches does not operate to preclude the opening or vacating of a void judgment, for the reason that no

amount of acquiescence can make it valid. 03/05/51, SLACK v. GRIGSBY, 97 N.E.2d 145. The

Treasurer correctly states the effect of a lack of subject-matter jurisdiction as creating a void judgment

-- it is as if the case had never been decided. Thus, it has been stated that there is no question of

discretion on the part of a court reviewing a void judgment, "[e]ither a judgment is void or it is valid."

C. Wright & A. Miller, FEDERAL PRACTICE AND PROCEDURE, (1973), Civil § 2862. And there

is no time limit or laches on an attack on a judgment as void. State v. Lindsey, (1952) 231 Ind. 126,

106 N.E.2d 230; Wright & Miller, supra at § 2862. Wright & Miller are even of the opinion that the

reasonable time standard of Federal Trial Rule of Procedure § 60(B) would not apply. Other effects of

the void judgment rule are that an appellate court must raise the subject matter jurisdiction issue sua

sponte and that there can be no waiver of the issue or conferred jurisdiction by consent. Matter of City

of Ft. Wayne, (1978), 178 Ind. App. 228, 381 N.E.2d 1093, 1095. A void judgment is one that, from

its inception, is a complete nullity and without legal effect. Stidham v. Welchel, 698 N.E.2d 1152,

1154 (Ind. 1998). A void judgment is one rendered by a court . . . without jurisdiction of a particular

case or the parties[.] Yellow Cab Co. of Bloomington, Inc. v. Williams, 583 N.E.2d 774, 777 (Ind. Ct.

App. 1991). Ind. Rules of Procedure, T.R. 60(B) (6) authorizes a trial court to grant relief from a void

judgment "upon such terms as are just. There is no . . . discretion on the part of a court reviewing a

void judgment. Schoffstall v. Failey (1979), Ind.App., 389 N.E.2d 361. Laches does not operate to

preclude the opening or vacating of a void judgment, for the reason that no amount of acquiescence

can make it valid. Under our constitution, there can be no valid trial of a criminal case unless a

defendant is defended by counsel, if he desires counsel. A judgment rendered where counsel has been

denied is void . . . (Citations omitted). This court has further held that when a void judgment is entered

it can be attacked at any time, directly or collaterally, whenever the question is raised. (Citation

omitted). The rule therefore is that due diligence is not a necessary fact to be proven when it is alleged

and proved that the petitioner's constitutional rights have been violated. It was not necessary for

appellees to prove that due diligence was used in filing their petitions. 07/30/86, DANNY J. RAY v.

STATE INDIANA, 496 N.E.2d 93. An award of attorneys' fees depends upon valid judgment being

entered and cannot be recovered as part of a void judgment. McMinn, at 620, 100 N.E.2d at 678. As

already noted, Pickett's sentence was not coercive in nature or for the benefit of Pelican and must,

KK

therefore, be considered punitive and properly imposed only in a criminal contempt proceeding. As

such, the trial court's order was a void judgment and so its award of attorneys' fees must also fail.

07/17/86, DENNIS PICKETT v. PELICAN SERVICE, 495 N.E.2d 245. A void judgment implies no

judgment at all, and its nonexistence may be declared upon collateral attack, upon suggestion of an

amicus curiae, or by the court at any time upon its own motion." Lowery v. State Life Ins. Co. (1899),

153 Ind. 100, 102, 54 N.E. 442, 443. Generally there is no requirement for one subjected to a "void"

judgment to do anything more than call the trial court's attention to the mistake with a request that the

same be corrected pursuant to Trial Rule 59. See State, ex rel. Eggers v. Branaman (1932), 204 Ind.

238, 183 N.E. 653. A party may secure an order declaring the invalidity of a void judgment by appeal.

An appeal will lie from a void judgment and an appellate tribunal may be successfully resorted to, to

secure a judicial determination of its invalidity. Board of Commissioners of Cass County v. The

Logansport and Rock Creek Gravel Road Company (1882), 88 Ind. 199, 200; Bartmess et. al., v.

Holliday (1901), 27 Ind. App. 544, 557, 61 N.E. 750. Where it is alleged that there are radical

jurisdictional defects, sufficient to render the judgment void and subject to collateral attack, and that

such lack of jurisdiction can be determined from the record (the record proper is the petition and the

return), habeas corpus is the proper remedy. Want of jurisdiction over the person or subject-matter is

always ground for such relief. If the court has acted without such jurisdiction, the judgment is

absolutely void, and one who is imprisoned under and by virtue of such a void judgment may be

discharged from custody on habeas corpus. 29 C.J. 30, note 16; 12 R.C.L. 1196; Miller v. Snider

(1854), 6 Ind. 1; People v. Simon (1918), 284 Ill. 28, 119 N.E. 940. As to person, see In re Mayfield

(1890), 141 U.S. 107, 35 L. Ed. 635; In re Reese (1901), 107 Fed. 942; Ex parte Reed (1879), 100 U.S.

13, 25 L. Ed. 538; Eureka Bank Cases (1912), 35 Nev. 80, 126 Pac. 655. As to subject-matter, see

Hans Nielson, Petitioner (1889), 131 U.S. 176, 33 L. Ed. 118; Ex parte Lange (1874), 18 Wall. 163;

Ex parte Yarbrough (1884), 110 U.S. 651, 28 L. Ed. 274; Ex parte Justus (1909), 3 Okla. Crim. 111,

104 Pac. 933, 25 L.R.A. (N.S.) 483. We find an exhaustive and able case note in 154 A.L.R. 818 by P.

H. Vartanian on the subject 'Lapse of time as bar to action or proceeding for relief in respect of void

judgment.' We concur in his Conclusion that it is one of the fundamental policies of the law that there

should be an end to litigation and that adherence to such policy has resulted in the common law

doctrine of finality of judgments, and unless appealed from within a designated time and reversed for

error, a judgment rendered by a competent court having jurisdiction over the subject matter of the

action and the necessary parties thereto, cannot be vacated after the expiration of the term of court at

LL

which it was rendered. However, in this state, by the statute under consideration, a limited control over

judgments of final settlement in the administration of decedent's estates, after the expiration of the term

in which they were rendered, is expressly conferred upon the courts and such a judgment may be

vacated at any time within three years from the date of its rendition for 'illegality, fraud or mistake in

such settlement.' The common law doctrine of the finality of judgments as modified by statute,

however, presupposes a valid judgment, the jurisdiction of the court over the subject matter and the

parties, and the competency of the court to render it. See cases cited in footnote 2, 154 A.L.R. 819.

Consequently, says Vartanian, in the case note to which we refer above, 'it is recognized by almost the

unanimous consensus of judicial authority that the doctrine and its corollary have no application to

void judgments, such as judgments rendered by a court having no jurisdiction over either the subject

matter of the action or the parties, or both, or by a court having no power to render the judgment, or to

judgments passing upon issues not within the case; and that such judgments may be opened or vacated

by the court rendering them on motion made at any time, even after the expiration of the term at which

they were rendered, or after the expiration of the period allowed by statute for opening or vacating

judgments on certain grounds. Most of the courts, however, have confined this rule to judgments that

are void on the face of the record and where a judgment is merely irregular, voidable or void because

of extrinsic facts such as fraud or mistake, relief is governed by the common law rule or by the statute

in those jurisdictions in which the common law rule has been modified. See cases cited in footnote 7,

154 A.L.R. 825. It is our considered opinion, supported by the great weight of authority, that the

remedy afforded the appellants in this case by § 6-1424, supra, is not an exclusive one and the

judgment involved, being void on the face of the record, is subject to appropriate attack even though

more than three years have elapsed since the date of its rendition. There may be some doubt as to the

propriety of an independent suit in equity to vacate a patently void judgment in view of the fact that the

overwhelming weight of authority indicates that such a judgment may be set aside by motion in the

same proceedings made in the court rendering the judgment, thus furnishing what would seem to be an

adequate remedy at law. Accord, Smith v. Tisdal (1985), Ind. App., 484 N.E.2d 42 (an action seeking

relief from a void judgment may be brought at any time).

MM

MICHIGAN HAS VOIDS!

A court may at any time relieve a party from a void judgment. A judgment entered by a court

without subject-matter jurisdiction is a void judgment and may be vacated at any time on the

court's own motion or upon the motion of any party thereto, including the party who originally

invoked the jurisdiction of the court. A fraud is perpetrated upon a court when some material

fact is concealed from the court or when some material misrepresentation is made to it; where,

in a divorce case, the court was advised regarding a possible reconciliation of the parties and

the decision not to take additional proofs on the issue of reconciliation was made by the trial

court, not by either party, there was no fraud perpetrated upon the court. Honigman &

Hawkins, Michigan Court Rules Annotated (2d Ed.), p 190. A judgment entered by a court

without subject-matter jurisdiction is a void judgment and may be vacated at any time on the

court's own motion or upon the motion of any party thereto, including the party who originally

invoked the jurisdiction of the court. Carpenter v. Dennison, 208 Mich 441 (1919); Orloff v.

Morehead Manufacturing Co., 273 Mich 62 (1935); Shane v. Hackney, 341 Mich 91 (1954);

Millman Brothers, Inc., v. Detroit, 2 Mich App 161 (1966). The district court found that the

Wisconsin judgment was issued by the small claims court in that jurisdiction, and that that

court's jurisdiction is limited to actions, "'where the amount claimed is $1,000 or less' (Wis

Statutes 299.01[4]) or 'where the value of the property claimed does not exceed $1,000' (Wis

Statutes 299.01[3])." In its original complaint filed in Wisconsin, plaintiff listed the value of

the property as $1,800. Since the judgment ultimately entered was in excess of $3,000, the

court concluded that the Marinette court did not have subject matter jurisdiction and reasoned

that a void judgment is attackable whenever its effects are felt. Therefore, it concluded no writ

of garnishment could issue based upon this void judgment. A judgment entered by a court

NN

without subject-matter jurisdiction is a void judgment and may be vacated at any time on the

court's own motion or upon the motion of any party thereto, including the party who originally

invoked the jurisdiction of the court. Carpenter v. Dennison, 208 Mich 441 [175 NW 419]

(1919); Orloff v. Morehead Manufacturing Co., 273 Mich 62 [262 NW 736] (1935); Shane v.

Hackney, 341 Mich 91 [67 NW2d 256] (1954); Millman Brothers, Inc., v. Detroit, 2 Mich App

161 [139 NW2d 139] (1966)." Banner v. Banner, 45 Mich App 148, 153; 206 NW2d 234

(1973). The Justice had no jurisdiction to render judgment on March 18th. The transcript

shows a void judgment. All proceedings based thereon are void. The transcript must

affirmatively show jurisdiction. Wedel v. Green, 70 Mich 642. A "void" judgment, as we all

know, grounds no rights, forms no defense to actions taken thereunder, and is vulnerable to any

manner of collateral attack (thus hereby). No statute of limitations or repose runs on its

holdings, the matters thought to be settled thereby are not res judicata, and years later, when the

memories may have grown dim and rights long been regarded as vested, any disgruntled

litigant may reopen the old wound and once more probe its depths. And it is then as though trial

and adjudication had never been. 10/13/58, FRITTS v. KRUGH, SUPREME COURT OF

MICHIGAN, 92 N.W.2d 604, 354 Mich. 97. On certiorari this Court may not review

questions of fact. Brown v. Blanchard, 39 Mich 790. It is not at liberty to determine

disputed facts (Hyde v. Nelson, 11 Mich 353), nor to review the weight of the evidence.

Linn v. Roberts, 15 Mich 443; Lynch v. People, 16 Mich 472. Certiorari is an appropriate

remedy to get rid of a void judgment, one which there is no evidence to sustain. Lake Shore

& Michigan Southern Railway Co. v. Hunt, 39 Mich 469. Void judgment is subject to

collateral attack in State where rendered and in other States. 10/05/42, NANCE v. GENTRY,

SUPREME COURT OF MICHIGAN, 5 N.W.2d 689, 303 Mich. 121.

OO

MISSOURI VOIDS IN BRIEF

The motion is authorized by Rule 74.06(b), "on motion and upon terms that are just, the court

may relieve a party . . . from a judgment [where] (4) the judgment is void." The motion must

be made within a reasonable time. Rule 74.06(c). The "procedure for obtaining any relief from

a judgment shall be by motion as prescribed in these Rules or by an independent action." Rule

74.06(d). Here, we have a motion filed in an equitable dissolution proceeding. It pleads all the

elements of a cause of action to set aside a void judgment which could be alleged in an

independent action. The Missouri Supreme Court in Sprung v. Negwer Materials, Inc., 727

S.W.2d 883 (Mo. banc 1987) held a motion to set aside a default judgment in a civil damage

suit was "sufficient to invoke the equitable powers of the court . . . [and] may be treated as an

independent suit in equity." Id. at 889. Timothy Brown's motion contests the fundamental

requirement of subject matter jurisdiction which implicates the issue of void judgment. It falls

within the scope of the rule. Rule 74.06(d). We read Rule 74.06(b)(4) together with 74.06(d)

to permit either motions or independent actions where the issue is a void judgment. We recently

defined a void judgment in K & K Investments, Inc. v. McCoy, ___ S.W.2d ___ (Mo.App. E.D.

1994) (slip op. #64245, decided May 3, 1994) as: One which has no legal force or effect,

invalidity of which may be asserted by any person whose rights are affected at any time and at

any place directly or collaterally. One which, from its inception is and forever continues to be

absolutely null, without legal efficacy, ineffectual to bind parties or support a right, of no legal

force and effect whatever, and incapable of confirmation, to any degree. Judgment is a "void

judgment" if court that rendered judgment lacked jurisdiction of the subject matter, or of the

parties, or acted in a manner inconsistent with due process. See also, Platt v. Platt, 815 S.W.2d

82, 83 (Mo. App. 1991) (quoting from Black's Law Dictionary 1574 (6th Ed. 1990)). A

collateral proceeding may not generally be used to contradict or impeach a final judgment. La

PP

Presto v. La Presto, 285 S.W.2d 568, 570 (Mo. 1955). However, a void judgment "is entitled

to no respect, and may be impeached at any time in any proceeding in which it is sought to be

enforced or in which its validity is questioned by anyone with whose rights or interests it

conflicts." Id. Gary contends that the 1997 modification judgment is void in several respects

because it did not comply with the statutory procedures for terminating parental rights section

211.444, RSMo Cum. Supp. 1996 and section 211.462, RSMo, 1994. The reported cases are

clear that an attack upon a void judgment is not subject to the "reasonable time" requirements

of Rule 74.06. Williams v. Williams, 932 S.W.2d 904, 905-06 (Mo. App. 1996); State ex rel.

Houston v. Malen, 864 S.W.2d 427, 430 (Mo. App. 1993) (questioned on other grounds by

Brackett v. Laney, 920 S.W.2d 597 (Mo. App. 1996)). In Williams, the Eastern District held

that a direct attack filed eight years after entry of a void default judgment was timely under

Rule 74.06. See Williams, 932 S.W.2d at 905-06. Similarly, in Houston, the appellate court

approved of a direct attack upon a judgment filed four years and three months after the

judgment was entered. See Houston, 864 S.W.2d at 430. A void judgment is subject to direct

or collateral attack at any time. Additionally, principles of equity such as laches or estoppel

cannot act as a bar to an attack upon a void judgment. See Houston, 864 S.W.2d at 430;

Hampton v. Hampton, 536 S.W.2d 324, 326 (Mo. App. 1976). Under the holdings of Houston

and Williams, Gary's three-year delay in attacking the modification judgment cannot bar him

from collaterally attacking that void judgment in the conservatorship proceeding. One of the

grounds the City circuit court specified for setting aside its order was that "the judgment is void

pursuant to Rule 74.06(b)(4)." A court may relieve a party from a final judgment under Rule

74.06 by setting aside a judgment it finds void. A void judgment is defined as follows: One

which has no legal force or effect, invalidity of which may be asserted by any person whose

QQ

rights are affected at any time and at any place directly or collaterally. One which, from its

inception is and forever continues to be absolutely null, without legal efficacy, ineffectual to

bind parties or support a right, of no legal force and effect whatever, and incapable of

confirmation, ratification, or enforcement in any manner or to any degree. Judgment is a "void

judgment" if court that rendered judgment lacked jurisdiction of the subject matter, or of the

parties, or acted in a manner inconsistent with due process (citations omitted). The City circuit

court found that the judgment was void because it had never obtained jurisdiction over

defendant and his wife in that they had not been served. Service of process is a prerequisite to

jurisdiction over the person of a defendant. Roberts v. Johnson, 836 S.W.2d 522, 524 (Mo.

App. 1992). A judgment entered against a party by a court lacking personal jurisdiction over

that party is void. Id. A void judgment is not a "judgment, regularly made" as that term is used

in § 511.240. An execution sale based on a void judgment does not vest title in the purchaser,

even if the purchaser is a stranger to the proceedings. State ex rel. Horine Farms, Inc. v. Jones,

830 S.W.2d 894, 896 (Mo. App. 1992). Plaintiff's arguments relating to whether it was a bona

fide purchaser for value do not apply in the context of a void judgment. See id. The City

circuit court's action setting aside ab initio its previous judgment as void meant there was no

judgment on which execution could be based. That the judgment was also set aside for other

reasons does not diminish the fact that the trial court found the judgment to have been entered

without jurisdiction and thus void. Plaintiff also contends that the execution sale could not be

set aside under Rule 74.03 because the sale was neither an order nor a judgment and

defendant's motion for summary judgment in the County case was not filed within six months.

Plaintiff further argues that defendant was not entitled to relief in the County case under Rule

74.06. Plaintiff asserts that defendant did not properly support his motion in the County case

RR

with evidence to support findings which plaintiff contends are required under Rules 74.03 and

74.06. These arguments have no merit. Defendant's counterclaim filed in the County case was

an independent action in equity to quiet title, to cancel the sheriff's deed, and to set aside the

execution. It was not a motion to set aside a judgment under Rules 74.03 or 74.06. An

execution sale may be set aside by an independent suit in equity. See Huff v. Huff, 622 S.W.2d

731, 733 (Mo. App. 1981); Workman v. Anderson, 297 S.W.2d 519, 523 (Mo. 1957), and cases

cited therein. It is axiomatic that a deed based on a void judgment may be collaterally attacked.

Davison v. Arne, 348 Mo. 790, 155 S.W.2d 155, 156 (Mo. 1941). An irregular judgment for

purposes of Rule 74.06(b) is defined as a judgment that is "materially contrary to an established

form and mode of procedure for the orderly administration of Justice. An irregularity must

render the judgment contrary to a proper result. The rule reaches only procedural errors which,

if known, would have prevented entry of a judgment." Burris v. Terminal R.R. Ass'n, 835

S.W.2d 535, 538 (Mo. App. 1992) (citations omitted). A void judgment, on the other hand, is

defined as: one which has no legal force or effect, invalidity of which may be asserted by any

person whose rights are affected at any time and at any place directly or collaterally. One

which, from its inception is and forever continues to be absolutely null, without legal efficacy,

ineffectual to bind parties or support a right, of no legal force and effect whatever, and

incapable of confirmation, ratification, or enforcement in any manner or to any degree.

Judgment is a "void judgment" if court that rendered judgment lacked jurisdiction of the subject

matter, or of the parties, or acted in a manner inconsistent with due process. A void judgment

is a nullity without integrity. Ripley v. Bank of Skidmore, 355 Mo. 897, 198 S.W.2d 861, 865

(1947); Wright v. Mullen, 659 S.W.2d 261, 263 (Mo. App. 1983). It was also noted in Wright,

that the absence of subject matter jurisdiction resulting from a void judgment is a jurisdictional

SS

defect. Wright, 659 S.W.2d at 263 (citing State ex rel., MFA Insurance Co. v. Murphy, 606

S.W.2d 661, 663 (Mo. banc 1980)). The parties to a void judgment are estopped from raising a

claim of lack of jurisdiction to enter a judgment in some circumstances. "It has often been said

that a void judgment is no judgment; that it may be attacked directly or collaterally . . . It

neither binds nor bars anyone . . . [Y]et, notwithstanding, a party to such judgment may

voluntarily perform it, by paying the amount adjudged against him and, when paid, no inquiry

will be made as to the validity of the judgment; or he may perform the acts required by a void

decree, or accept its benefits, and thereby estop himself from questioning the decree. In other

words, a party to a void judgment or decree may be estopped from attacking it, either directly

or indirectly." Tremayne v. City of St. Louis, 6 S.W.2d 935, 936 (Mo. banc 1928) (quoting

Mohler v. Shank, 61 N.W. 981, 984 (Iowa. 1895)); see also RCA Mut. Ins. Co. v. Sanborn, 918

S.W.2d 893, 897 n.6 (Mo. App. 1996), and Matter of Estate of Tapp, 569 S.W.2d 281, 285

(Mo. App. 1978) (one accepting and retaining benefits of a void judgment is estopped to deny

the validity of any part thereof, or any burdensome consequences, even where invalidity arises

from want of subject matter jurisdiction). We have ex gratia reviewed the issue of void

judgment under Rule 74.06(b). A dismissal is void if entered without either actual or

constructive notice. Henningsen, 875 S.W.2d at 119. The issue of void judgment is not

restricted by time. Rule 74.06(c); Blanton v. United States Fidelity and Guar. Co., 680 S.W.2d

206, 208 (Mo. App. 1984). We do not have jurisdiction to review an appeal of a void

judgment. It has often been said that a void judgment is no judgment; that it may be attacked

directly or collaterally . . . It neither binds nor bars anyone . . . [Y]et, notwithstanding, a party

to such judgment may voluntarily perform it, by paying the amount adjudged against him and,

when paid, no inquiry will be made as to the validity of the judgment; or he may perform the

TT

acts required by a void decree, or accept its benefits, and thereby estop himself from

questioning the decree. In other words, a party to a void judgment or decree may be estopped

from attacking it, either directly or indirectly. State ex rel. York v. Daugherty, 969 S.W.2d 223,

225 (Mo. banc 1998); see also Matter of Estate of Tapp, 569 S.W.2d 281, 185 (Mo.App. 1978)

(one accepting and retaining benefits of a void judgment is estopped to deny the validity of any

part thereof, or any burdensome consequences, even where invalidity arises from want of

subject matter jurisdiction); State, Dept. of Social Services v. Houston, 989 S.W.2d 950, 952

(Mo. banc 1999) (15 months failure to challenge validity of a child support modification order

when circumstances "invited an expression of a position contrary to compliance with the order

by filing a petition for review" constituted conduct affirming the validity of the order).

BRIEF OVERVIEW OF THE LAW OF VOIDS IN NEBRASKA

A void judgment may be attacked at any time in any proceeding, 03/27/92 CHERYL PHYLIS

MARSHALL v. GARY LYNN, 482 N.W.2d 1, 240 Neb. 322. It is the longstanding rule in

Nebraska that "a void judgment may be attacked at any time in any proceeding." Lammers

Land & Cattle Co. v. Hans, 213 Neb. 243, 249, 328 N.W.2d 759, 763-64 (1983). Accord

Drennen v. Drennen, 229 Neb. 204, 426 N.W.2d 252 (1988). Moreover, "' void judgment is in

reality no judgment at all. It does not bind the person against whom it is rendered. It may be

impeached in any action, direct or collateral.'" Stanton v. Stanton, 146 Neb. 71, 75, 18 N.W.2d

654, 656 (1945) (quoting from Hassett v. Durbin, 132 Neb. 315, 271 N.W. 867 (1937)). See,

also, Shade v. Kirk, 227 Neb. 775, 420 N.W.2d 284 (1988) (a void judgment is subject to

collateral attack); Griffin v. Vandersnick, 210 Neb. 590, 316 N.W.2d 299 (1982) (a judgment

entered without jurisdiction is void and subject to collateral attack); Strawn v. County of Sarpy,

UU

154 Neb. 844, 49 N.W.2d 677 (1951). Gary Marshall's paying any or all sums due under the

modified but void judgment does not operate to validate the void judgment. "Litigants cannot

confer subject matter jurisdiction on a judicial tribunal by either acquiescence or consent."

Coffelt v. City of Omaha, 223 Neb. 108, 110, 388 N.W.2d 467, 469 (1986). Accord, In re

Interest of Adams, 230 Neb. 109, 430 N.W.2d 295 (1988); Andrews v. City of Lincoln, 224

Neb. 748, 401 N.W.2d 467 (1987); In re Interest of L.D. et al., 224 Neb. 249, 398 N.W.2d 91

(1986). Although this court declares that a collateral attack on a prior plea-based conviction is

procedurally barred, the longstanding rule in Nebraska is that "'a void judgment is subject to

collateral attack.'" State ex rel. Ritthaler v. Knox, 217 Neb. 766, 768, 351 N.W.2d 77, 79

(1984). Accord, Schilke v. School Dist. No. 107, supra; State ex rel. Southeast Rural Fire P.

Dist. v. Grossman, 188 Neb. 424, 197 N.W.2d 398 (1972). Moreover, "a void judgment may

be attacked at any time in any proceeding." Lammers Land & Cattle Co. v. Hans, 213 Neb.

243, 249, 328 N.W.2d 759, 763-64 (1983). Accord Drennen v. Drennen, 229 Neb. 204, 426

N.W.2d 252 (1988). "'A void judgment is in reality no judgment at all. It does not bind the

person against whom it is rendered. It may be impeached in any action, direct or collateral.'"

Stanton v. Stanton, 146 Neb. 71, 75, 18 N.W.2d 654, 656 (1945). "'It is a general rule of law

that a judgment which is null and void is subject to collateral attack.' 31 Am. Jur. 181, sec. 583.

'A void judgment may be impeached in a collateral proceeding.' 34 C.J. 510." Drainage

District No. 1 v. Village of Hershey, 139 Neb. 205, 211, 296 N.W. 879, 882 (1941). See, also,

Davis Management, Inc. v. Sanitary & Improvement Dist. No. 276, 204 Neb. 316, 282 N.W.2d

576 (1979); County of Douglas v. Feenan, 146 Neb. 156, 18 N.W.2d 740 (1945). The courts of

Nebraska, through their inherent judicial power, have the authority to do all things reasonably

necessary for the proper administration of justice, whether any previous form of remedy has

VV

been granted or not. This holds particularly true in the case of a void judgment. Laschanzky v.

Laschanzky, 246 Neb. 705, 523 N.W.2d 29 (1994). A judgment issued from a proceeding that

violates a citizen's right to due process is void. State v. Rehbein, 235 Neb. 536, 455 N.W.2d

821 (1990); State v. Von Dorn, 234 Neb. 93, 449 N.W.2d 530 (1989); State v. Ewert, 194 Neb.

203, 230 N.W.2d 609 (1975); In re Application of Maher, North v. Dorrance, 144 Neb. 484, 13

N.W.2d 653 (1944); In re Betts, 36 Neb. 282, 54 N.W. 524 (1893). A void judgment may be

set aside at any time and in any proceeding. VonSeggern v. Willman, 244 Neb. 565, 508

N.W.2d 261 (1993); Marshall v. Marshall, 240 Neb. 322, 482 N.W.2d 1 (1992); State v. Ewert;

Ehlers v. Grove, 147 Neb. 704, 24 N.W.2d 866 (1946); Hayes County v. Wileman, 82 Neb. 669,

118 N.W. 478 (1908). “A void judgment may be attacked at any time in any proceeding."

Marshall v. Marshall, 240 Neb. 322, 328, 482 N.W.2d 1, 5 (1992). "A court of record has

inherent authority to amend its records so as to make them conform to the facts." Gunia v.

Morton, 175 Neb. 53, 56, 120 N.W.2d 371, 373 (1963). "The District Court, of course, may

grant relief where the judgment is void or the court was without jurisdiction. It may also correct

a judgment in a criminal case to make it conform to the judgment actually pronounced." State

v. Adamson, 194 Neb. 592, 594, 233 N.W.2d 925, 926 (1975). "Where a portion of a sentence

is valid and a portion is invalid or erroneous, the court has authority to modify or revise the

sentence by removing the invalid or erroneous portion . . ." State v. McDermott, 200 Neb. 337,

339, 263 N.W.2d 482, 484 (1978). A judgment entered by a court which lacks subject matter

jurisdiction is void. It is the longstanding rule in Nebraska that such a void judgment may be

attacked at any time in any proceeding 11/19/93, O. WILLIAM VONSEGGERN v. WALTER H.

WILLMAN, 508 N.W.2d 261. A judgment entered by a court which lacks subject matter

jurisdiction is void. Marshall v. Marshall, 240 Neb. 322, 482 N.W.2d 1 (1992). Also, it is the

WW

longstanding rule in Nebraska that such a void judgment may be attacked at any time in any

proceeding. Id.; Drennen v. Drennen, 229 Neb. 204, 426 N.W.2d 252 (1988); Lammers Land &

Cattle Co. v. Hans, 213 Neb. 243, 328 N.W.2d 759 (1983). It may be impeached in any action,

direct or collateral. Marshall v. Marshall. Stanton v. Stanton, 146 Neb. 71, 18 N.W.2d 654

(1945); Hassett v. Durbin, 132 Neb. 315, 271 N.W. 867 (1937). See, also, Shade v. Kirk, 227

Neb. 775, 420 N.W.2d 284 (1988). That is because a void judgment is in reality no judgment

at all. Marshall v. Marshall. As only a void judgment is subject to attack in a habeas corpus

action, an appellate court is limited in such a case to reviewing a question of law, namely, is the

judgment in question void? Glantz v. Hopkins, 261 Neb. 495, 624 N.W.2d 9 (2001); Berumen

v. Casady, 245 Neb. 936, 515 N.W.2d 816 (1994). It is the longstanding rule in Nebraska that

such a void judgment may be raised at any time in any proceeding. Bradley v. Hopkins, 246

Neb. 646, 522 N.W.2d 394 (1994); VonSeggern v. Willman, 244 Neb. 565, 508 N.W.2d 261

(1993). A void judgment may be attacked at any time in any proceeding. Stanton v. Stanton,

146 Neb. 71, 18 N.W.2d 654 (1945); Drainage District No. 1 v. Village of Hershey, 139 Neb.

205, 296 N.W. 879 (1941). Here a judgment is attacked in a way other than a proceeding in the

original action to have it vacated, reversed, or modified, or a proceeding in equity to prevent its

enforcement, the attack is a "collateral attack." County of Douglas v. Feenan, 146 Neb. 156, 18

N.W.2d 740 (1945); State ex rel. Southeast Rural Fire P. Dist. v. Grossman, 188 Neb. 424, 197

N.W.2d 398 (1972). Only a void judgment is subject to collateral attack. Stanton v. Stanton,

146 Neb. 71, 18 N.W.2d 654 (1945); Davis Management, Inc. v. Sanitary & Improvement Dist.

No. 276, 204 Neb. 316, 282 N.W.2d 576 (1979). A void sentence is no sentence . . ." State v.

Wren, 234 Neb. 291, 294, 450 N.W.2d 684, 687 (1990). It has been a longstanding law in

Nebraska that a void judgment may be attacked at any time in any proceeding. State v. Ryan,

XX

249 Neb. 218, 543 N.W.2d 128 (1996); State v. Ewert, 194 Neb. 203, 230 N.W.2d 609 (1975).

In keeping with that, the longstanding rule in Nebraska is that a void judgment may be attacked

at any time in any proceeding. Kuhlmann v. City of Omaha, 251 Neb. 176, 556 N.W.2d 15

(1996). Likewise, a district court has the power to question sua sponte at any time its statutory

authority to exercise subject matter jurisdiction. See, County of Sherman v. Evans, 252 Neb.

612, 564 N.W.2d 256 (1997); In re Adoption of Kassandra B. & Nicholas B., 248 Neb. 912,

540 N.W.2d 554 (1995). Because res judicata does not bar collateral attacks on void

judgments, the outcome of this issue hinges on whether the district court had subject matter

jurisdiction to divide Howard's VA disability income. As illustrated by our foregoing analysis,

if the district court lacked subject matter jurisdiction to divide the VA disability income, then

that portion of the order dividing such income was void and subject to collateral attack in any

subsequent enforcement action. The question of a court's subject matter jurisdiction does not

turn solely on the court's authority to hear a certain class of cases, such as dissolutions of

marriage or accounting actions; it also involves determining whether a court is authorized to

address a particular question that it assumes to decide or to grant the particular relief requested.

Compare, In re Interest of J.T.B. and H.J.T., 245 Neb. 624, 514 N.W.2d 635 (1994) (focusing

on particular question lower court assumed to decide); Lewin v. Lewin, 174 Neb. 596, 119

N.W.2d 96 (1962) (indicating that court must have subject matter jurisdiction to address

particular question it assumes to decide). Collateral Attack is a proper means of collaterally

attacking the validity of a void judgment. 09/30/94, CON M. BRADLEY v. FRANK X.

HOPKINS, 522 N.W.2d 394, 246 Neb. 646. We recognize that in LeGrand, the Nebraska

Supreme Court stated that a "void judgment may be set aside at any time and in any

proceeding." 249 Neb. at 7, 541 N.W.2d at 385. State v. LeGrand, 249 Neb. 1, 9, 541 N.W.2d

YY

380, 386 (1995). Judgments: Collateral Attack. A void judgment may be attacked at any

time in any proceeding. Jurisdiction. Litigants cannot confer subject matter jurisdiction on a

judicial tribunal by either acquiescence or consent. 03/27/92, CHERYL PHYLIS MARSHALL v.

GARY LYNN, SUPREME COURT OF NEBRASKA 1992, NE.107, 482 N.W.2d 1, 240 Neb.

322, March 27, 1992. It is the longstanding rule in Nebraska that "a void judgment may be

attacked at any time in any proceeding." Lammers Land & Cattle Co. v. Hans, 213 Neb. 243,

249, 328 N.W.2d 759, 763-64 (1983). Accord Drennen v. Drennen, 229 Neb. 204, 426 N.W.2d

252 (1988). Moreover, "'void judgment is in reality no judgment at all. It does not bind the

person against whom it is rendered. It may be impeached in any action, direct or collateral.'"

Stanton v. Stanton, 146 Neb. 71, 75, 18 N.W.2d 654, 656 (1945) (quoting from Hassett v.

Durbin, 132 Neb. 315, 271 N.W. 867 (1937)). See, also, Shade v. Kirk, 227 Neb. 775, 420

N.W.2d 284 (1988) (a void judgment is subject to collateral attack); Griffin v. Vandersnick, 210

Neb. 590, 316 N.W.2d 299 (1982) (a judgment entered without jurisdiction is void and subject

to collateral attack); Strawn v. County of Sarpy, 154 Neb. 844, 49 N.W.2d 677 (1951). Gary

Marshall's paying any or all sums due under the modified but void judgment does not operate to

validate the void judgment. "Litigants cannot confer subject matter jurisdiction on a judicial

tribunal by either acquiescence or consent." Coffelt v. City of Omaha, 223 Neb. 108, 110, 388

N.W.2d 467, 469 (1986). In re Interest of Adams, 230 Neb. 109, 430 N.W.2d 295 (1988);

Andrews v. City of Lincoln, 224 Neb. 748, 401 N.W.2d 467 (1987); In re Interest of L.D. et al.,

224 Neb. 249, 398 N.W.2d 91 (1986). The longstanding rule in Nebraska is that "'a void

judgment is subject to collateral attack.'" State ex rel. Ritthaler v. Knox, 217 Neb. 766, 768,

351 N.W.2d 77, 79 (1984). Schilke v. School Dist. No. 107, State ex rel. Southeast Rural Fire

P. Dist. v. Grossman, 188 Neb. 424, 197 N.W.2d 398 (1972). Moreover, "a void judgment

ZZ

may be attacked at any time in any proceeding." Lammers Land & Cattle Co. v. Hans, 213

Neb. 243, 249, 328 N.W.2d 759, 763-64 (1983). Void judgment is in reality no judgment at all.

It does not bind the person against whom it is rendered. It may be impeached in any action,

direct or collateral.'" Stanton v. Stanton, 146 Neb. 71, 75, 18 N.W.2d 654, 656 (1945). "'It is a

general rule of law that a judgment which is null and void is subject to collateral attack.' 31

Am. Jur. 181, sec. 583. 'A void judgment may be impeached in a collateral proceeding.' 34

C.J. 510." Drainage District No. 1 v. Village of Hershey, 139 Neb. 205, 211, 296 N.W. 879,

882 (1941). See, also, Davis Management, Inc. v. Sanitary & Improvement Dist. No. 276, 204

Neb. 316, 282 N.W.2d 576 (1979); County of Douglas v. Feenan, 146 Neb. 156, 18 N.W.2d

740 (1945). Judgments: Jurisdiction: Collateral Attack. A judgment entered by a court which

lacks subject matter jurisdiction is void. It is the longstanding rule in Nebraska that such a void

judgment may be attacked at any time in any proceeding. It may be impeached in any action,

direct or collateral. Hassett v. Durbin, 132 Neb. 315, 271 N.W. 867 (1937). See, also, Shade v.

Kirk, 227 Neb. 775, 420 N.W.2d 284 (1988). Collateral Attack is a proper means of

collaterally attacking the validity of a void judgment, 09/30/94, CON M. BRADLEY v. FRANK

X. HOPKINS, 1994, NE.476, 522 N.W.2d 394, 246 Neb. 646.

VOID JUDGMENTS – NEVADA

NRCP 60(b)(3) allows a party to move for relief from a judgment which is void, and

while motions made under NRCP 60(b) are generally required to "be made within a

reasonable time" and to be adjudicated according to the district court's discretion, this is

not true in the case of a void judgment. Necessarily a motion under this part of the rule

differs markedly from motions under the other clauses of Rule 60(b). There is no

question of discretion on the part of the court when a motion is made under [this portion

AAA

of the Rule]. Nor is there any requirement, as there usually is when default judgments are

attacked under Rule 60(b), that the moving party show that he has a meritorious defense.

Either a judgment is void or it is valid. Determining which it is may well present a

difficult question, but when that question is resolved, the court must act accordingly. By

the same token, there is no time limit on an attack on a judgment as void . . . [E]ven the

requirement that the motion be made within a "reasonable time," which seems literally to

apply . . . cannot be enforced with regard to this class of motion. Understandably, the

parties were not attuned to our recent Jacobs decision during oral argument.

Accordingly, it was determined at that time to allow the parties to supplement their briefs

in order to determine with certainty whether, in fact, no default had been entered against

Garcia prior to the entry of the default judgment. Garcia's supplemental material

supplied additional evidence that no default was ever entered, including an affidavit by

Clark County Court Clerk Loretta Bowman attesting that no such filing exists in the case

file. Respondents also acknowledged that no default was ever entered, but argue in their

supplemental brief that Jacobs should not be applied retroactively, noting that the default

judgment at issue herein was entered prior to our Jacobs decision. This argument is

without merit. The court in Jacobs determined, consistent with law from other

jurisdictions, that the default judgment entered in Jacobs was void. We accordingly

ordered the district court to grant relief from the void judgment, despite the fact that the

ruling in Jacobs was, of course, preceded by entry of the default judgment against Jacobs.

If this case, rather than Jacobs, were before us as a case of first impression, we would

have reached the same conclusion. A void judgment is void for all purposes and may not

be given life under a theory based upon lack of legal precedent. Garcia v. Ideal Supply

Co., 110 Nev. 493, 874 P.2d 752 (Nev. 5/19/1994). The defective service rendered the

district court's personal jurisdiction over Gassett invalid and the judgment against her

void. For a judgment to be void, there must be a defect in the court's authority to enter

judgment through either lack of personal jurisdiction or jurisdiction over subject matter in

the suit. Puphal v. Puphal, 669 P.2d 191 (Idaho 1983). In Price v. Dunn, 106 Nev. 100,

787 P.2d 785 (1990). We now hold that the filing of a motion to set aside a void

judgment previously entered against the movant shall not constitute a general

appearance. See, e.g., Dobson v. Dobson, 108 Nev. 346, 349, 830 P.2d 1336, 1338

BBB

(1992). Nonetheless, since the order was void, a judgment based thereon would likewise

be void. Nelson v. Sierra Constr. Corp., 77 Nev. 334, 364 P.2d 402. Under NRCP 60(b)

a motion to set aside a void judgment is not restricted to the six months' period specified

in the rule. NRCP 54(a) provides that the word "judgment" as used in these rules

includes any order from which an appeal lies. Therefore, there is no merit to appellants'

contention that the motion to vacate the judgment was not timely made. Foster v. Lewis,

78 Nev. 330, 372 P.2d 679 (Nev. 6/19/1962). A void judgment is subject to collateral

attack; a judgment is void if the issuing court lacked personal jurisdiction or subject

matter jurisdiction. See 49 C.J.S. Judgments § 401, at 792 (1947 & supp. 1991); 46

Am.Jur.2d Judgments §§ 621-56 (1969 & supp. 1991).

A BRIEF OVERVIEW OF THE LAW OF VOIDS IN NEW MEXICO

If a court's decision is plainly contrary to a statute or the constitution, the court will be

held to have acted without power or jurisdiction, making the judgment void for Rule 1-

060(B) purposes, even if the court had personal and subject-matter jurisdiction. See, e.g.,

United States v. Indoor Cultivation Equip., 55 F.3d 1311, 1317 (7th Cir. 1995) (forfeiture

statute required that complaint be filed within sixty days of certain action; failure to meet

that deadline meant that court had no power to order forfeiture, and its order was void);

Watts v. Pinckney, 752 F.2d 406, 409 (9th Cir. 1985) (after judgment awarded, defendant

paid, then found out this was action in admiralty that should have been brought solely

against United States; court held that judgment was void); Compton v. Alton S.S. Co.,

608 F.2d 96, 104 (4th Cir. 1979) (judgment by default awarded penalty wages under

inapplicable statute; court held that judgment was void, not just erroneous); see also

V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224-25 (10th Cir. 1979) (noting that judgment

can be void if court's action involves a "plain usurpation of power"); Crosby v. Bradstreet

Co., 312 F.2d 483, 485 (2d Cir. 1963) (court had no power to impose unconstitutional

prior restraint on publication of true statements, so thirty-year-old consent judgment was

void). In APCA, APCA as a defendant filed a cross-claim against defendant Martinez,

but it was void because not served on Martinez. On February 28, 1968, entry of judgment

was made on APCA's cross-claim against Martinez. Four years later, Martinez' heirs

CCC

moved to set aside the APCA judgment under Rule 60(b) and in December, 1972, the

1968 judgment was set aside because it was void. No time limit applies where a void

judgment is entered. Albuquerque Prod. Credit Ass'n v. Martinez, 91 N.M. 317, 573

P.2d 672 (1978). Since the 1973 judgment was void, the 1976 district court was required

to set it aside pursuant to N.M.R. Civ.P. 60(b)(4) [§ 21-1-1(60)(b)(4)], N.M.S.A. 1953

(Repl. Vol.1970). There is no discretion on the part of a district court to set aside a void

judgment. Such a judgment may be attacked at any time in a direct or collateral action.

Chavez v. County of Valencia, 86 N.M. 205, 521 P.2d 1154 (1974). At this point we call

attention also to language found in the opinion in Moore v. Packer, 174 N.C. 665, 94 S.E.

449, 450, noticed by us and quoted with approval in the Ealy case. It was there said: "A

void judgment is without life or force, and the court will quash it on motion, or ex mero

motu. Indeed, when it appears to be void, it may and will be ignored everywhere, and

treated as a mere nullity." All the appellees rely upon this general rule in answer to

appellants' challenge that they never took an appeal from the order and judgment setting

aside the June, 1937 default judgment and decree. The court being without jurisdiction to

set aside its earlier judgment and decree, quieting title, appellees might ignore it as a void

order or judgment, they say, and for this reason were not required to take an appeal

therefrom, and may question the jurisdiction of the court and the validity of the order or

judgment at any time. Board of County Commissioners of Quay County v. Wasson, 37

N.M. 503, 24 P.2d 1098; Fullen v. Fullen, 21 N.M. 212, 153 P. 294; Baca v. Perea, 25

N.M. 442, 184 P. 482; De Baca v. Wilcox, 11 N.M. 346, 68 P. 922. In the case of Upjohn

Co. v. Board of Commissioners of Socorro County (Stephenson, Intervener), 25 N.M.

526, 185 P. 279, 280, we held a judgment against a garnishee void where service of the

writ of garnishment was made by a person other than the sheriff, where we said: "The

proceeding is wholly statutory, and compliance with the statute is essential to confer upon

the court jurisdiction of the res." And held that the court was vested with power to set

aside and vacate such void judgment at any time. A void judgment is one that has merely

semblance, without some essential element or elements, as where the court purporting to

render it has not jurisdiction. An irregular judgment is one entered contrary to the course

of the court, contrary to the method of procedure and practice under it allowed by law in

some material respect, as if the court gave judgment without the intervention of a jury in

DDD

a case where the party complaining was entitled to a jury trial, and did not waive his right

to the same. Vass v. Building Association, 91 N.C. 55; McKee v. Angel, 90 N. C. 60. An

erroneous judgment is one rendered contrary to law. The latter cannot be attacked

collaterally at all, but it must remain and have effect until by appeal to a court of errors it

shall be reversed or modified. An irregular judgment may originally and generally be set

aside by a motion for the purpose in the action. This is so because in such case a

judgment was entered contrary to the course of the court by inadvertence, mistake, or the

like. A void judgment is without life or force, and the court will quash it on motion, or ex

mero motu. Indeed, when it appears to be void it may and will be ignored everywhere,

and treated as a mere nullity." Moore v. Packer, 174 N.C. 665, 94 S. E. 449, at page 450.

[T]he applicable ground [for relief] would be Rule 60(B)(4), void judgment, under which

the failure to move to vacate within one year after the entry of judgment would not be

controlling. Classen v. Classen, 119 N.M. 582, 893 P.2d 478, 34 N.M. St. B. Bull., 24

(N.M.App. 02/27/1995). The appellants contend that the court lost jurisdiction over the

action thirty days after the judgment was vacated. They argue that the appellees never

appealed the order which vacated the judgment, consequently, thirty days later the court

was divested of authority to entertain any motion concerning these parties and the same

cause of action, and that for these reasons the motion to amend the cross-claim was

improperly granted. This point is not well-taken. The pertinent portions of Rule 60(b)

state: On motion and upon such terms as are just, the court may relieve a party or his

legal representative from a final judgment, order, or proceeding for the following reasons:

. . . (4) the judgment is void. An order granting a motion for relief under 60(b) must be

tested by the usual principles of finality; and when so tested will occasionally be final,

although probably in most cases it will not be. Thus where the court, in addition to

determining that there is a valid ground for relief under 60(b), at the same time makes a

re-determination of the merits, its order is final since it leaves nothing more to be

adjudged. Since Martinez never received notice of the cross-claim, the stipulated

judgment was void as to him. Therefore, it was completely proper for his heirs to move to

set aside that void judgment under Rule 60(b)(4). When the original judgment was

vacated as to Martinez, the status of the case was as though no judgment had been

entered as to him. Wuenschel v. New Mexico Broadcasting Corp., 84 N.M. 109, 500

EEE

P.2d 194 (1972); Benally v. Pigman, 78 N.M. 189, 429 P.2d 648 (1967); Arias v.

Springer, 42 N.M. 350, 78 P.2d 153 (1938). Rule 60(b) of the Rules of Civil Procedure

abolishes the common law writ of coram nobis but authorizes relief from a "final

judgment, order, or proceeding" on six specified grounds. Ground (2) involves newly

discovered evidence; ground (4) involves a void judgment; and ground (6) involves "any

other reason justifying relief." Although Rule 60(b) is a civil rule, State v. Romero,

supra, held that where a prisoner had served his sentence and had been released, this civil

rule could be utilized to seek relief from a criminal judgment claimed to be void. This

result was based on an intent to retain all substantive rights protected by the old writ of

coram nobis. See State v. Raburn, supra; Roessler v. State, 79 N.M. 787, 450 P.2d 196

(Ct. App. 1969), cert. denied, 395 U.S. 967, 89 S. Ct. 2115, 23 L. Ed. 2d 754 (1969).

Continuing jurisdiction over final judgment. The judgment entered on April 25 was a

final judgment. The City argues that Brooks could obtain relief from the writ issued on

May 1 only under SCRA 1986, 3-704(B) (Repl. Pamp. 1990), which limits relief to (1)

mistake, inadvertence, surprise or excusable neglect; (2) fraud, misrepresentation or other

misconduct; (3) a void judgment; or (4) satisfaction, release or discharge of the judgment

or the reversal or vacation of a prior judgment upon which it is based. However, NMSA

1978, Section 34-8A- 6(E) (Repl. Pamp. 1990), states that "All judgments rendered in

civil actions in the metropolitan court shall be subject to the same provisions of law as

those rendered in district court." Under NMSA 1978, Section 39-1-1 (Repl. Pamp.

1991), final judgments and decrees entered by the district courts remain under the control

of such courts for thirty days after entry thereof. Therefore, the metropolitan court

retained control of its judgment and had the right to set it aside after granting a rehearing

on the matter. See, e.g., Nichols v. Nichols, 98 N.M. 322, 326, 648 P.2d 780, 784 (1982)

(district court is authorized under Section 39-1-1 to change, modify, correct or vacate a

judgment on its own motion) (citing Desjardin v. Albuquerque Nat'l Bank, 93 N.M. 89,

596 P.2d 858 (1979)). The fact that the void judgment has been affirmed on review in an

appellate court or an order or judgment renewing or reviving it entered adds nothing to its

validity. Such a judgment has been characterized as a dead limb upon the judicial tree,

which may be chopped off at any time, capable of bearing no fruit to plaintiff but

FFF

constituting a constant menace to defendant." WALLS v. ERUPCION MIN. CO., 6 P.2d

1021 November 3, 1931.

NORTH CAROLINA: FIRST IN FLIGHT TO VOID JUDGMENT RELIEF? And if the court has no jurisdiction over the subject matter of the action, the judgment in

the action is void. A void judgment is one which has a mere semblance, but is lacking in

some of the essential elements which would authorize the court to proceed to judgment.

Harrell v. Welstead, 206 N.C. 817, 175 S.E. 283; Monroe v. Niven, 221 N.C. 362, 20

S.E.2d 311." It is well established law that a void judgment is no judgment, is a nullity

without life or force, no rights can be based thereon, and it can be attacked collaterally by

anyone whose rights are adversely affected by it. Reid v. Bristol, 241 N.C. 699, 86

S.E.2d 417; Casey v. Barker. Although Rule 60(b) contains the requirement that all

motions made pursuant thereto be made "within a reasonable time," the requirement is

not enforceable with respect to motions made pursuant to Rule 60(b)(4), because a void

judgment is a legal nullity which may be attacked at any time. 11 Wright and Miller,

Federal Practice and Procedure: Civil §§ 2862, 2866 (1973). If the judgment of divorce

from bed and board at issue in the present case is void, then, as with any other void

judgment, it establishes no legal rights and may be vacated without regard to time.

Cunningham v. Brigman, 263 N.C. 208, 139 S.E.2d 353 (1964). Our Supreme Court has

described a void judgment as "one which has a mere semblance but is lacking in some of

the essential elements which would authorize the court to proceed to judgment." Monroe

v. Niven, 221 N.C. 362, 364, 20 S.E.2d 311, 312 (1942). "When a court has no authority

to act, its acts are void." If the court was without authority, its judgment . . . is void and

of no effect. A lack of jurisdiction or power in the court entering a judgment always voids

the judgment, and a void judgment may be attacked whenever and wherever it is asserted,

without any special plea. Hanson v. Yandle, 235 N.C. 532, 535, 70 S.E.2d 565, 568

(1952), Carpenter v. Carpenter, 244 N.C. 286, 93 S.E.2d 617 (1956). A void judgment,

however, binds no one and it is immaterial whether the judgment was or was not entered

by consent. Hanson, supra. "[I]t is well settled that consent of the parties to an action

does not confer jurisdiction upon a court to render a judgment which it would otherwise

have no power or jurisdiction to render." Saunderson, supra at 172, 141 S.E. at 574.

GGG

Laches is an equitable doctrine and ordinarily should not be a defense to a motion to open

a judgment that is void. 46 Am. Jur. 2d Judgments § 752 (1969). In Powell v. Turpin,

224 N.C. 67, 29 S.E.2d 26 (1944), plaintiff sought to have a tax foreclosure sale declared

invalid for want of proper service of process. In deciding for the plaintiff, the court stated,

"It is likewise elementary that unless one named as a defendant has been brought into

court in some way sanctioned by law . . . the court has no jurisdiction of the person and

judgment rendered against him is void." Id. at 70, 71, 29 S.E.2d at 28. The court in

Powell also examined whether such a judgment was subject to a collateral attack. "No

statute of limitations runs against the plaintiffs' action by reason of the judgment of

foreclosure, and laches, if any appeared, is no defense." Id. at 71, 29 S.E.2d at 29; see

Page v. Miller and Page v. Hynds, 252 N.C. 23, 113 S.E.2d 52 (1960). Time, however

great, does not affect the validity of a judgment; it cannot render a void judgment valid."

Monroe v. Niven, 221 N.C. 362, 365, 20 S.E.2d 311, 313 (1942). "A nullity is a nullity,

and out of nothing nothing comes. Ex nihilo nihil fit is one maxim that admits of no

exception." If there be a defect, e.g., a total want of jurisdiction apparent upon the face of

the proceedings, the court will of its own motion, 'stay, quash, or dismiss' the suit. This is

necessary to prevent the court from being forced into an act of usurpation, and compelled

to give a void judgment . . . so, (out of necessity) the court may, on plea, suggestion,

motion, or ex mero motu, where the defect of jurisdiction is apparent, stop the

proceedings. 238 N.C. at 646, 78 S.E.2d at 717-18. A void judgment is not a judgment

at all, and it may always be treated as a nullity because it lacks an essential element of its

formulation. See Clark v. Carolina Homes, Inc., 189 N.C. 703, 128 S.E. 20 (1925).

When a purported consent judgment is void because the consent is by an attorney who

has no authority to consent thereto, the party for whom the attorney purported to act is

not required to show a meritorious defense in order to vacate such void judgment. Bath

v. Norman, 226 N.C. 502, 505, 39 S.E.2d 363. Where there is no service of process, the

court has no jurisdiction, and its judgment is void. A void judgment is a nullity, and no

rights can be based thereon. Collins v. Highway Com., 237 N.C. 277, 74 S.E.2d 709;

Moore v. Humphrey, 247 N.C. 423, 101 S.E.2d 460. "'The passage of time, however

great, does not affect the validity of a judgment; it cannot render a void judgment valid.'

31 Am. Jur., 66; Anno. 81 A.S.R., 559." Now 30-A Am. Jur., 170. Monroe v. Niven, 221

HHH

N.C. 362, 20 S.E.2d 311. See also Com'rs. of Roxboro v. Bumpass, 233 N.C. 190, 63

S.E.2d 144. A void judgment is without life or force, and the Court will quash it on

motion, or ex mero motu. Indeed, when it appears to be void, it may and will be ignored

everywhere, and treated as a mere nullity." (Our Italics) Stafford v. Gallops, 123 N.C.

19, 31 S.E. 265; Moore v. Packer, 174 N.C. 665, 94 S.E. 449; Duffer v. Brunson, 188

N.C. 789, 125 S.E. 619; Dail v. Hawkins, 211 N.C. 283, 189 S.E. 774; Simms v.

Sampson, 221 N.C. 379, 20 S.E.2d 554; Mills v. Richardson, supra. See McIntosh,

N.C.P.&P, Secs. 651, 652 and 653. Quoting from Boone v. Sparrow, supra, "A void

judgment is not a judgment and may always be treated as a nullity . . . it has no force

whatever; it may be quashed ex mero motu. Clark v. Homes, 189 N.C. 703, 128 S.E. 20."

And quoting from the latter, "A void judgment is not a judgment and may always be

treated as a nullity. It lacks some essential element; it has no force whatever; it may be

quashed ex mero motu. Stallings v. Gully, 48 N.C. 344; McKee v. Angel, 90 N.C. 60;

Carter v. Rountree, 109 N.C. 29; Mann v. Mann, 176 N.C. 353; Moore v. Packer, 174

N.C. 665." A void judgment is without life or force, and the court will quash it on

motion, or ex mero motu. Indeed, when it appears to be void, it may and will be ignored

everywhere, and treated as a mere nullity." (Emphasis added.) The later decisions are in

full accord: Stafford v. Gallops, 123 N.C. 19, 31 S.E. 265; Moore v. Packer, 174 N.C.

665, 94 S.E. 449; Duffer v. Brunson, 188 N.C. 789, 125 S.E. 619; Simms v. Sampson, 221

N.C. 379, 20 S.E.2d 554. See McIntosh, N.C. P. & P. 734-737. A party who is subject to

an order by a trial court which is void, may attack that order at any time, pursuant to Rule

60(b)(4) of the Rules of Civil Procedure. N.C.G.S. § 1A-1, Rule 60(b) (1990); Allred, 85

N.C. App. at 141, 354 S.E.2d at 294 (void judgment is legal nullity which may be

attacked at any time). A void judgment . . . binds no one and it is immaterial whether the

judgment was . . . entered by consent." Id. at 144, 354 S.E.2d at 295. Rule 60(b)(4)

provides that a court may relieve a party from a judgment if it is void. N.C. Gen. Stat. §

1A-1, Rule 60(b)(4)(1990). A void judgment is a nullity which may be attacked at any

time. Allred v. Tucci, 85 N.C. App. 138, 141, 354 S.E.2d 291, 294, cert. denied, 320

N.C. 166, 358 S.E.2d 47 (1987). If a court has no jurisdiction over the subject matter, the

judgment is void. Pifer v. Pifer, 31 N.C. App. 486, 229 S.E.2d 700, 702 (1976). A void

judgment resembles a valid judgment, but lacks an essential element such as jurisdiction

III

or service of process. Windham Distributing Co., Inc. v. Davis, 72 N.C. App. 179, 323

S.E.2d 506 (1984), disc. rev. denied, 313 N.C. 613, 330 S.E.2d 617 (1985). A judgment

is not void if "'the court had jurisdiction over the parties and the subject matter and had

authority to render the judgment entered.'" Id. at 181-182, 323 S.E.2d at 508 (quoting In

re Brown, 23 N.C. App. 109, 110, 208 S.E.2d 282, 283 (1974)). It should be noted that

since the Judgment entered by Judge Griffin on 18 March 1992 is void, no final judgment

on the merits has been entered in this case. Any attempt by the defendants to appeal from

that void judgment then, is inconsequential, and any errors made in attempting such

appeal are without lasting significance. The plaintiff may raise a collateral attack on the

order taxing costs as a defense to defendant's motion to dismiss only if the order taxing

costs was void ab initio. State v. Sams, 317 N.C. 230, 345 S.E.2d 179 (1986); Stroupe v.

Stroupe, 301 N.C. 656, 273 S.E.2d 434 (1981); Lumber Co. v. West, 247 N.C. 699, 102

S.E.2d 248 (1958); Massengill v. Lee, 228 N.C. 35, 44 S.E.2d 356 (1947); Edwards v.

Brown's Cabinets, 63 N.C. App. 524, 305 S.E.2d 765 (1983); Manufacturing Co. v.

Union, 20 N.C. App. 544, 202 S.E.2d 309, cert. denied, 285 N.C. 234, 204 S.E.2d 24

(1974); but see Thornburg v. Lancaster, 303 N.C. 89, 277 S.E.2d 423 (1981); contra In re

Will of Parker, 76 N.C. App. 594, 334 S.E.2d 97, disc. rev. denied, 315 N.C. 184, 337

S.E.2d 859 (1985). In State v. Sams, 317 N.C. 230, 235-36, 345 S.E.2d 179, 182-83, this

Court stated that [a]n order is void ab initio only when it is issued by a court that does not

have jurisdiction. Such an order is a nullity and may be attacked either directly or

collaterally, or may simply be ignored. North Carolina allows for collateral attacks. See

Daniels v. Montgomery Mutual Insurance Co., 320 N.C. 669, 360 S.E.2d 772 (N.C.

10/07/1987). A void judgment, however, binds no one. Its invalidity may be asserted at

any time and in any action where some benefit or right is asserted thereunder. A

judgment is void if the court rendering it does not have jurisdiction either of the asserted

cause of action or of the parties. Moore v. Humphrey, 247 N.C. 423, 101 S.E.2d 460;

Mills v. Richardson, 240 N.C. 187, 81 S.E.2d 409; Powell v. Turpin, 224 N.C. 67, 29

S.E.2d 26; Dunn v. Wilson, 210 N.C. 493, 187 S.E. 802; Clark v. Homes, 189 N.C. 703,

128 S.E. 20; Carter v. Rountree, 109 N.C. 29, 13 S.E. 716.

JJJ

A BRIEF OVERVIEW OF THE LAW OF VOIDS IN OHIO

Irrespective of whether a party moves to vacate a judgment, Ohio courts have

inherent authority to vacate a void judgment. Patton v. Diemer (1988), 35 Ohio St.3d 68.

A void judgment is one that is rendered by a court that is "wholly without jurisdiction or

power to proceed in that manner." In re Lockhart (1952), 157 Ohio St. 192, 195, 105

N.E.2d 35, 37. A judgment is void ab initio where a court rendering the judgment has no

jurisdiction over the person. Records Deposition Service, Inc. v. Henderson & Goldberg,

P.C. (1995), 100 Ohio App.3d 495, 502; Compuserve, Inc. v. Trionfo (1993), 91 Ohio

App.3d 157, 161; Sperry v. Hlutke (1984), 19 Ohio App.3d 156. In Van DeRyt v. Van

DeRyt (1966), 6 Ohio St. 2d 31, 36, 35 Ohio Op. 2d 42, 45, 215 N.E.2d 698,704, we

stated, "A court has an inherent power to vacate a void judgment because such an order

simply recognizes the fact that the judgment was always a nullity." Service of process

must be reasonably calculated to notify interested parties of the pendency of an action

and afford them an opportunity to respond. A default judgment rendered without proper

service is void. A court has the inherent power to vacate a void judgment; thus, a party

who asserts improper service need not meet the requirements of Civ.R. 60(B). (Emphasis

added.) Emge, 124 Ohio App.3d at 61, 705 N.E.2d at 408. We note further that

appellant's main contention is that the default judgment granted by Judge Connor is void

because it was rendered against a non-entity. As will be addressed infra, judgments

against non-entities are void. A Civ.R. 60(B) motion to vacate a judgment is not the

proper avenue by which to obtain a vacation of a void judgment. See Old Meadow Farm

Co. v. Petrowski (Mar. 2, 2001), Geauga App. No. 2000-G-2265, unreported; Copelco

Capital, Inc. v. St. Mark's Presbyterian Church (Feb. 1, 2001), Cuyahoga App. No.

77633, unreported. Rather, the authority to vacate void judgments is derived from a

court's inherent power. Oxley v. Zacks (Sept. 29, 2000). I. THE TRIAL COURT

ABUSED ITS DISCRETION BY DENYING MR. FINESILVER'S MOTION TO

VACATE VOID JUDGMENT WHEN THE UNCONTROVERTED TESTIMONY OF

MR. FINESILVER SUBMITTED TO THE TRIAL COURT SHOWS THAT MR.

FINESILVER NEVER RECEIVED THE COMPLAINT OF C.E.I., OR NOTICE OF

THE PROCEEDINGS IN THE TRIAL COURT. II. THE TRIAL COURT ABUSED

ITS DISCRETION BY FAILING TO HOLD A HEARING ON MR. FINESILVER'S

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MOTION TO VACATE VOID JUDGMENT WHEN MR. FINESILVER TESTIFIED

THAT HE NEVER RECEIVED NOTICE OF THE ACTION FILED BY C.E.I. III.

THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING MR. FINESILVER

RECEIVED SERVICE OF THE COMPLAINT WHEN C.E.I. DID NOT OBTAIN

SERVICE OF PROCESS AS REQUIRED BY THE OHIO CIVIL RULES. IV. THE

TRIAL COURT ABUSED ITS DISCRETION BY FINDING THAT MR. FINESILVER

WAS SERVED AT A PROPER BUSINESS ADDRESS WHEN MR. FINESILVER

HAD LEFT THE STATE AND NO LONGER MAINTAINED ANY PHYSICAL

PRESENCE AT SAID BUSINESS ADDRESS. After reviewing the record and the

arguments of the parties, we reverse the decision of the trial court. Cleveland Electric

Illuminating Company v. Finesilver, No. 69363 (Ohio App. Dist.8 04/25/1996). "The

authority to vacate a void judgment is not derived from Civ.R. 60(B), but rather

constitutes an inherent power possessed by Ohio courts." Patton v. Diemer (1988), 35

Ohio St.3d 68, paragraph four of the syllabus; Cincinnati School Dist. Bd. of Edn. v.

Hamilton City. Bd. of Revision (2000), 87 Ohio St.3d 363, 368. Because a court has the

inherent power to vacate a void judgment, a party who claims that the court lacked

personal jurisdiction as a result of a deficiency in service of process is entitled to have the

judgment vacated and need not satisfy the requirements of Civ.R. 60(B). State ex rel.

Ballard v. O'Donnell (1990), 50 Ohio St.3d 182, paragraph one of the syllabus;

Cincinnati School Dist. Bd. of Edn. at 368; Patton at paragraph three of the syllabus;

Thomas at 343. See, also Williams v. Ludlum (Aug. 20, 1999), Portage App. No. 98-P-

0016, unreported, at 7, 1999 Ohio App. LEXIS 3869. The authority to vacate a void

judgment, therefore, is not derived from Civ. R. 60(B), "but rather constitutes an inherent

power possessed by Ohio courts." Patton, supra, paragraph four of the syllabus. A party

seeking to vacate a void judgment must, however, file a motion to vacate or set aside the

same. CompuServe, supra, at 161. Yet to be entitled to relief from a void judgment, a

movant need not present a meritorious defense or show that the motion was timely filed

under Civ. R. 60(B). ("A void judgment is one entered either without jurisdiction of the

person or of the subject matter." Eisenberg v. Peyton (1978), 56 Ohio App.2d 144, 148.

A motion to vacate a void judgment, therefore, need not comply with the requirements of

Civ.R. 60(B), which the petitioner ordinarily would assert to seek relief from a

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jurisdictionally valid judgment. Demianczuk v. Demianczuk (1984), 20 Ohio App.3d

244, 485 N.E.2d 785. Entry was void because it constituted a modification of a property

division without a reservation of jurisdiction to do so -- an act the court may not perform

under Wolfe v. Wolfe (1976), 46 Ohio St.2d 399, at paragraph one of the syllabus, and our

opinion in Schrader v. Schrader (1995), 108 Ohio App.3d 25. Because the notices

required by R.C. Chapter 5715 were not given to Candlewood prior to the BOR's July 2,

1997 hearing and after its August 18, 1997 decision, and no voluntary appearance was

made by Candlewood, the BOR's August 18, 1997 decision is a nullity and void as

regards Candlewood. As one Texas appellate court so aptly stated concerning a void

judgment, "[i]t is good nowhere and bad everywhere." Dews v. Floyd

(Tex.Civ.App.1967), 413 S.W.2d 800, 804. A court has an inherent power to vacate a

void judgment because such an order simply recognizes the fact that the judgment was

always a nullity." The term "inherent power" used in the two preceding cases is defined

in Black's Law Dictionary (6 Ed.1990) 782 as "[a]n authority possessed without its being

derived from another. A right, ability, or faculty of doing a thing, without receiving that

right, ability, or faculty from another." Because this claim challenged the subject matter

jurisdiction of the trial court, it was not barred by res judicata because a void judgment

may be challenged at any time. See State v. Wilson (1995), 73 Ohio St.3d 40, 45-46, 652

N.E.2d 196, 200, fn. 6. If the trial court was without subject matter jurisdiction of

defendant's case, his conviction and sentence would be void ab initio. See Patton v.

Diemer (1988), 35 Ohio St.3d 68, 518 N.E.2d 941, paragraph three of the syllabus. A

void judgment is a mere nullity, and can be attacked at any time. Tari v. State (1927),

117 Ohio St. 481, 494, 159 N.E. 594, 597-598. A movant, however, need not present a

meritorious defense to be entitled to relief from a void judgment. Peralta v. Heights

Med. Ctr., Inc. (1988), 485 U.S. 80, 108 S. Ct. 896, 99 L. Ed.2d 75. Nor must a movant

show that the motion was timely filed under the guidelines of Civ.R. 60(B) if a judgment

is void. In re Murphy (1983), 10 Ohio App.3d 134, 10 OBR 184, 461 N.E.2d 910;

Satava v. Gerhard (1990), 66 Ohio App.3d 598, 585 N.E.2d 899; see, generally,

Associated Estates Corp. v. Fellows (1983), 11 Ohio App.3d 112, 11 OBR 166, 463

N.E.2d 417.

MMM

A BRIEF OVERVIEW OF THE LAW OF VOID JUDGMENTS IN OKLAHOMA

The general rule is that a void judgment is no judgment at all. Where judgments are void,

as was the judgment originally rendered by the trial court here, any subsequent

proceedings based upon the void judgment are themselves void. In essence, no judgment

existed from which the trial court could adopt either findings of fact or conclusions of

law. Valley Vista Development Corp. v. City of Broken Arrow, 766 P.2d 344, 1988 OK

140 (Okla. 12/06/1988). A facially void judgment may be vacated at any time. Section

1038 provides that the passage of time does not operate to bar a quest to vacate a facially

void judgment. Read v. Read, 2001 OK 87 (Okla. 10/16/2001). The pertinent provisions

of 12 O.S. Supp. 1993 §1038 state: "A void judgment, decree or order may be vacated at

any time on motion of a party, or any person affected thereby." Title 12 O.S. 1971 §

1038 provides that a void judgment may be vacated at any time on motion of "any person

affected thereby." The insurance company claims that it has never asked that the default

judgment be declared void, merely that the judgment should be ignored since it is a

nullity. Defendant's argument is supported by the general rule that a void judgment is no

judgment at all. Le Clair v. Calls Him, 106 Okl. 247, 233 P. 1087 (1925). "A void

judgment is, in legal effect, no judgment at all. By it no rights are divested; from it no

rights can be obtained. Being worthless, in itself, all proceedings founded upon it are

necessarily equally worthless, and have no effect whatever upon the parties or matters in

question. A void judgment neither binds nor bars anyone. All acts performed under it,

and all claims flowing out of it, are absolutely void. The parties attempting to enforce it

are trespassers." High v. Southwestern Insurance Company, 520 P.2d 662, 1974 OK 35

(Okla. 03/19/1974). A void judgment may be vacated at any time. Title 12, Oklahoma

Statutes, Section 1038. Void judgments may be vacated at any time, Churchill v.

Muegge, Okl., 323 P.2d 339, and may be vacated at any time on the motion of any

interested party. State v. City of Tulsa, 153 Okl. 262, 5 P.2d 744. A void judgment

cannot constitute res judicata. Denial of previous motions to vacate a void judgment

could not validate the judgment or constitute res judicata, for the reason that the lack of

judicial power inheres in every stage of the proceedings in which the judgment was

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rendered. Bruce v. Miller, 360 P.2d 508, 1960 OK 266 (Okla. 12/27/1960). A void

judgment is one that is void upon the face of the judgment roll. Capitol Federal Savings

Bank v. Bewley, 795 P.2d 1051 (Okl. 1990). The judgment roll has been defined to

include the petition, process, return, pleadings, reports, verdicts, orders and all acts and

proceedings of the court. Mayhue v. Mayhue, 706 P.2d 890 (Okl. 1985). A void

judgment may be attacked at any time, whereas a judgment which is only voidable may

be successfully attacked only if the requirements of 12 O.S. 1981 § 1031 are met. 12

O.S. 1981 § 1038; Capitol Federal Savings Bank v. Bewley, supra. Here, it is clear from

the face of the order confirming sale that Appellant's due process rights were violated.

Thus, the order confirming sale is void on its face and the trial court was without

jurisdiction to enter such order. The trial court's judgment is REVERSED AND this

matter is REMANDED for further proceedings consistent with this opinion. Federal

Deposit Ins. Corp. v. Duerksen, 810 P.2d 1308, 1991 OK CIV APP 39 (Okla.App.Div.3

04/30/1991). Any interested party may move to set aside a void judgment. High v.

Southwestern Insurance Co., Okl., 520 P.2d 662 (1974). A different statutory rule

applies when the judgment sought to be vacated is alleged to be void. Under the

provisions of 12 O.S. 1971 § 1038 any party affected by a void judgment has an

independent claim for vacation. It may seek vacation at any time. Jent v. Brown, Okl.,

280 P.2d 1005, 1008 [1955].

A BRIEF OVERVIEW OF THE LAW OF VOIDS IN SOUTH CAROLINA

A void judgment is one that, from its inception, is a complete nullity and is without legal

effect." Thomas & Howard Co. v. T.W. Graham and Co., 318 S.C. 286, 291, 457 S.E.2d

340, 343 (1995). The definition of void under the rule only encompasses judgments from

courts which failed to provide proper due process, or judgments from courts which lacked

subject matter jurisdiction or personal jurisdiction." McDaniel v. U.S. Fid. & Guar. Co.,

324 S.C. 639, 644, 478 S.E.2d 868, 871 (Ct. App. 1996). It is fundamental that no

judgment or order affecting the rights of a party to the cause shall be made or rendered

without notice to the party whose rights are to be affected." Tyron Fed. Sav. & Loan

Ass'n v. Phelps, 307 S.C. 361, 362, 415 S.E.2d 397, 398 (1992). Generally, a person

OOO

against whom a judgment or order is taken without notice may rightly ignore it and may

assume that no court will enforce it against his person or property. The requirements of

due process not only include notice, but also include an opportunity to be heard in a

meaningful way, and judicial review. Grannis v. Ordean, 234 U.S. 385, 394 (1914)

("The fundamental requisite of due process of law is the opportunity to be heard."); S.C.

Dep't of Soc. Servs. v. Holden, 319 S.C. 72, 78, 459 S.E.2d 846, 849 (1995).

A BRIEF OVERVIEW OF THE LAW OF VOIDS IN TEXAS

Judicial action taken after the trial court's plenary power has expired is void. See State

ex. rel Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995); see also Mapco, Inc. v. Forrest,

795 S.W.2d 700, 703 (Tex. 1990) (defining a void judgment as one rendered when a

court has no jurisdiction over the parties or subject matter, no jurisdiction to render

judgment, or no capacity to act as a court). A party affected by void judicial action need

not appeal. State ex rel. Latty, 907 S.W.2d at 486. If an appeal is taken, however, the

appellate court may declare void any orders the trial court signed after it lost plenary

power over the case. "A void judgment is a nullity from the beginning, and is attended

by none of the consequences of a valid judgment. It is entitled to no respect whatsoever

because it does not affect, impair, or create legal rights." Ex parte Seidel, 39 S.W.3d 221,

225 (Tex. Crim. App. 2001). Only void convictions are subject to collateral attack.

Christian v. State, 865 S.W.2d 198, 201 (Tex. App.-Dallas 1993, pet. ref'd) (challenge to

voidable error in conviction, raised on appeal from revocation order, was impermissible

collateral attack). A Void Judgment Is a Void Judgment Is a Void Judgment - Bill of

Review and Procedural Due Process in Texas, 40 Baylor L. Rev. 367, 378-79 (1988).

See Thomas, 906 S.W.2d at 262 (holding that trial court has not only power but duty to

vacate a void judgment). A judgment is void only when it is clear that the court

rendering judgment had no jurisdiction over the parties or subject matter, no jurisdiction

to render judgment, or no capacity to act as a court. When appeal is taken from a void

judgment, the appellate court must declare the judgment void. Because the appellate

court may not address the merits, it must set aside the trial court's judgment and dismiss

the appeal. A void judgment may be attacked at any time by a person whose rights are

PPP

affected. See El-Kareh v. Texas Alcoholic Beverage Comm'n, 874 S.W.2d 192, 194 (Tex.

App.-- Houston [14th Dist.] 1994, no writ); see also Evans v. C. Woods, Inc., No. 12-99-

00153-CV, 1999 WL 787399, at *1 (Tex. App.--Tyler Aug. 30, 1999, no pet. h.). A void

judgment is a "nullity" and can be attacked at any time. Deifik v. State, No. 2-00-443-CR

(Tex.App. Dist.2 09/14/2001). "A void judgment is a nullity from the beginning, and is

attended by none of the consequences of a valid judgment. It is entitled to no respect

whatsoever because it does not affect, impair, or create legal rights." Since the trial

court's dismissal "with prejudice" was void, it may be attacked either by direct appeal or

collateral attack. Ex parte Williams, No. 73,845 (Tex.Crim.App. 04/11/2001). "A void

judgment is a nullity from the beginning, and is attended by none of the consequences of

a valid judgment. It is entitled to no respect whatsoever because it does not affect, impair,

or create legal rights." Ex parte Spaulding, 687 S.W.2d at 745 (Teague, J., concurring).

Since the trial court's dismissal "with prejudice" was void, it may be attacked either by

direct appeal or collateral attack. See Ex parte Shields, 550 S.W.2d at 675, a void

judgment can be collaterally attacked. See Glunz v. Hernandez, 908 S.W.2d 253, 255

(Tex. App.-San Antonio 1995, writ denied); Tidwell v. Tidwell, 604 S.W.2d 540, 542

(Tex. Civ. App.- Texarkana 1980, no writ) (finding that a void judgment may be

collaterally attacked by a suit to set aside the judgment after it has become final if such

void judgment becomes material). We agree. A collateral attack is any proceeding to

avoid the effect of a judgment which does not meet all the requirements of a valid direct

attack. See Glunz, 908 S.W.2d at 255. There is neither a set procedure for a collateral

attack nor a statute of limitations. See Glunz, 908 S.W.2d at 255; Davis v. Boone, 786

S.W.2d 85, 87 (Tex. App.-San Antonio 1990, no writ). Collateral attacks may be only

used to set aside a judgment which is void, or which involved fundamental error. See

Glunz, 908 S.W.2d at 255. Fundamental error for this purpose means cases where the

record shows the court lacked jurisdiction or that the public interest is directly and

adversely affected as that interest is declared in the statutes or the Constitution of Texas.

See id. The cases distinguish between judgments which are void, and therefore may be

set aside by a collateral attack, and those which are voidable and must be attacked by a

valid direct attack. See id. A judgment is void if it is shown that the court lacked

jurisdiction: 1) over a party or the property; 2) over the subject matter; 3) to enter a

QQQ

particular judgment; or 4) to act as a court. Jurisdiction could not be conferred by waiver

or retroactively. ELNA PFEFFER ET AL. v. ALVIN MEISSNER ET AL. (11/23/55), 286

S.W.2d 241. Strictly speaking a void judgment is one which has no legal force or effect

whatever. It is an absolute nullity and such invalidity may be asserted by any person

whose rights are affected, at any time and at any place. It need not be attacked directly,

but may be attacked collaterally whenever and wherever it is interposed. Usually it

carries the evidence of its invalidity upon its face, while a voidable judgment is one

apparently valid, but in truth wanting in some material respect; in other words, one that is

erroneous. Such vice may be the want of jurisdiction over the person or other similar

fundamental deficiency, but which vice does not affirmatively appear upon the face of the

judgment. BILLY DUNKLIN v. A. J. LAND ET UX., 297 S.W.2d 360 (12/21/56). Where

a void judgment has been rendered and the record in the cause, or judgment roll, reflects

the vice, then the court has not only the power but the duty and even after the expiration

of the term to set aside such judgment. Harrison v. Whiteley, Tex.Com.App., 6 S.W.2d

89. This court in Neugent v. Neugent, Tex.Civ.App., 270 S.W.2d 223, followed and

applied the rule announced in the Harrison-Whiteley case. The Supreme Court, speaking

through Folley, Commissioner, in Bridgman v. Moore, 143 Tex. 250, 183 S.W.2d 705, at

page 707, said: "The court has not only the power but the duty to vacate the inadvertent

entry of a void judgment at any time, either during the term or after the term, with or

without a motion therefore." We will not extend this discussion further than to state that

we here reaffirm the holding on the point involved as announced by Justice Hightower in

the former appeal (301 S.W.2d 181). While this holding was premature in view of the

action of the Supreme Court (304 S.W.2d 265) reversing our holding, it was not upon the

points discussed in Justice Hightower's opinion, but was on the point that since the

judgment appealed from was an interlocutory one and not final, the appeal should be

dismissed. However, we think our holding then is now appropriate. A void judgment has

been termed mere waste paper, an absolute nullity; and all acts performed under it are

also nullities. Again, it has been said to be in law no judgment at all, having no force or

effect, conferring no rights, and binding nobody. It is good nowhere and bad everywhere,

and neither lapse of time nor judicial action can impart validity. Commander v. Bryan,

123 S.W.2d 1008, (Tex.Civ.App., Fort Worth, 1938, n.w.h.); 34 Tex.Jur., Sec. 262, page

RRR

177; Maury v. Turner, 244 S.W. 809, (Tex.Com.App., 1922). Also, a void judgment has

been defined as "one which has no legal force or effect, invalidity of which may be

asserted by any person whose rights are affected at any time and at any place directly or

collaterally." Black's Law Dictionary; Reynolds v. Volunteer State Life Ins. Co., 80

S.W.2d 1087, (Tex.Civ.App., Eastland, 1935, writ ref.); Gentry v. Texas Department of

Public Safety, 379 S.W.2d 114, 119, (Tex.Civ.App., Houston, 1964, writ ref., n.r.e., 386

S.W.2d 758). It has also been held that "It is not necessary to take any steps to have a

void judgment reversed, vacated, or set aside. It may be impeached in any action direct

or, collateral.” Holder v. Scott, 396 S.W.2d 906, (Tex.Civ.App., Texarkana, 1965, writ

ref., n.r.e.).

A FEW OF THE MANY, MANY AUTHORITIES

ON THE LAW OF VOIDS IN WASHINGTON

Court held that a quiet title action, not an action to vacate the judgment, was the

appropriate means for the grantee of a judgment debtor to clear the title of land sold

under a void judgment. Krutz, 25 Wash. at 572-74, 577-78. In Krutz, the judgment and

subsequent sheriff's sale were void for improper service. Krutz, 25 Wash. at 566-78. The

court stated that the grantee, who purchased from the judgment debtor, was not a party to

the prior judgment and could not have brought a motion to vacate the void judgment.

Krutz, 25 Wash. at 566-78. Similarly, Mueller, having an interest in the property as the

purchaser from Griffin's estate, made a collateral attack on the validity of the sheriff's sale

through this quiet title action.

If a motion to relieve a party from judgment is based on mistake, inadvertence,

excusable neglect, newly discovered evidence or irregularity in obtaining the judgment, it

must be made within a year of the judgment's entry. CrR 7.8(b). A motion based on a

void judgment or "{a}ny other reason justifying relief from the operation of the

judgment" may be brought within a reasonable time. CrR 7.8(b)(5); State v. Clark, 75

Wn. App. 827, 830, 880 P.2d 562 (1994).

A judgment is void when the court does not have personal or subject matter

jurisdiction, or "lacks the inherent power to enter the order involved." Petersen, 16

Wash. App. at 79 (citing Bresolin, 86 Wash. 2d at 245; Anderson, 52 Wash. 2d at 761)

SSS

(additional citation omitted). A trial court has no discretion when faced with a void

judgment, and must vacate the judgment "whenever the lack of jurisdiction comes to

light." Mitchell v. Kitsap County, 59 Wash. App. 177, 180-81, 797 P.2d 516 (1990)

(collateral challenge to jurisdiction of pro tem judge granting summary judgment

properly raised on appeal) (citing Allied Fidelity Ins. Co. v. Ruth, 57 Wash. App. 783,

790, 790 P.2d 206 (1990)). As discussed above, since the judgment is void, this

collateral attack through the quiet title action was proper.

A challenge to a void judgment can be brought at any time. Matter of Marriage

of Leslie, 112 Wash. 2d 612, 618-19, 772 P.2d 1013 (1989) (citing John Hancock Mut.

Life Ins. Co. v. Gooley, 196 Wash. 357, 370, 83 P.2d 221 (1938) (additional citation

omitted); CR 60(b)(5).

A trial court's decision to grant or deny a motion to vacate a default judgment is

generally reviewed for an abuse of discretion; however, a court has a nondiscretionary

duty to vacate a void judgment. Leen, 62 Wash. App. at 478; In re Marriage of

Markowski, 50 Wash. App. 633, 635, 749 P.2d 754 (1988); Brickum Inv. Co. v. Vernham

Corp., 46 Wash. App. 517, 520, 731 P.2d 533 (1987).

A motion to vacate under CR 60(b)(5) “may be brought at any time" after entry of

judgment. Lindgren v. Lindgren, 58 Wash. App. 588, 596, 794 P.2d 526 (1990), review

denied, 116 Wash. 2d 1009, 805 P.2d 813 (1991); see also Brenner v. Port Bellingham,

53 Wash. App. 182, 188, 765 P.2d 1333 (1989) ("motions to vacate under CR 60(b)(5)

are not barred by the 'reasonable time' or the 1-year requirement of CR 60(b)"). Void

judgments may be vacated regardless of the lapse of time. In re Marriage of Leslie, 112

Wash. 2d 612, 618-19, 772 P.2d 1013 (1989). Consequently, not even the doctrine of

laches bars a party from attacking a void judgment. Leslie, 112 Wash. 2d at 619-20.

Brenner provides a striking example of how meaningless the passage of time is in

the context of a void judgment. There, a default judgment was entered in 1969

condemning all interests in certain real property and vesting title in the Port of

Bellingham. In 1985, Brenner sued the Port for damages resulting from the

condemnation action and alleged in part that the Port had failed to satisfy the statutory

requirements of service by publication. The trial court denied Brenner's motion for

summary judgment, ruling that the Port's error was merely an irregularity and, thus,

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voidable under CR 60(b)(1) rather than void under CR 60(b)(5). The trial court also

found that Brenner had failed to move to vacate the judgment within a reasonable time as

required by CR 60(b)(1). 53 Wash. App. at 185. The Court of Appeals reversed, holding

that the Port's failure to strictly comply with the requirements of service by publication

meant the court had no jurisdiction over Brenner when it entered the 1969 judgment

condemning her interest in the property. Recognizing that a default judgment entered

without valid service is void and may be vacated at any time, the court remanded the case

to the trial court with instructions to vacate the 16-year-old judgment. 53 Wash. App. at

188. In the present case, the trial court expressly found Allstate's service of process was

defective. "Proper service of the summons and complaint is essential to invoke personal

jurisdiction over a party, and a default judgment entered without proper jurisdiction is

void." Markowski, 50 Wash. App. at 635-36; see also Mid-City Materials. Inc. v. Heater

Beaters Custom Fireplaces, 36 Wash. App. 480, 486, 674 P.2d 1271 (1984). Because a

party may move to vacate a void judgment at any time (Leslie, 112 Wash. 2d at 618-19),

the trial court erred by finding that Khani failed to bring his motion within a reasonable

time. Further, as discussed in detail below, the trial court's finding that Khani had actual

notice of the default judgment through the DOL notice is irrelevant on these facts. More

significantly, the trial court erred by denying Khani's motion because it failed to fulfill its

nondiscretionary duty to vacate a void judgment. See Leen, 62 Wash. App. at 478;

Markowski, 50 Wash. App. at 635. Thus, the trial court's order must be reversed and the

case remanded with instructions to vacate the default judgment and quash the writ of

garnishment. See Leslie, 112 Wash. 2d at 618 (a vacated judgment has no effect, and the

parties' rights are left as though the judgment had never been entered).

A void judgment is always subject to collateral attack. Bresolin v. Morris, 86

Wash. 2d 241, 245, 543 P.2d 325 (1975). A void judgment must be vacated whenever

the lack of jurisdiction comes to light. Mitchell v. Kitsap Cy., 59. Wash. App. 177, 180-

81, 797 P.2d 516 (1990).

"A void judgment may be attacked collaterally as well as directly. It is entitled to

no consideration whatever in any court as evidence of right, Kizer v. Caufield, 17 Wash.

417, 49 P. 1064.

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A void judgment is defined in Dike v. Dike, 75 Wash. 2d 1, 7, 448 P.2d 490

(1968).

These historical rules are set against the fact that the law of reopening estates is

derived from the law of vacating judgments. In re Jones' Estate, 116 Wash. 424, 426,

199 P. 734 (1921). With the advent of CR 60, additional justifications upon which to

reopen an estate may exist. Specifically, CR 60(b)(4) allows the court to vacate a

judgment procured through '{f}raud . . . , misrepresentation, or other misconduct of an

adverse party.' CR 60(b)(4). Of course, a 'void' judgment is also unenforceable. CR

60(b)(5). CR 60 also contains a catchall provision, which permits the court to vacate a

judgment for '{a}ny other reason justifying relief from the operation of the judgment.'

CR 60(b)(11).

It is true that, under CR 60(b)(5), a court may vacate a void judgment at any time.

A judgment is void if entered by a court without jurisdiction. In re Marriage of Ortiz,

108 Wn.2d 643, 649, 740 P.2d 843 (1987).

Where the judgment was procured fraudulently so that it was void and its

invalidity appeared on the face of the record so that either on the Henkles' or on the

commissioner's own motion, the court commissioner had the power to vacate the void

judgment without notice to McCormick. Morrison v. Berlin, the court commissioner did

not manifestly abuse his discretion here. State v. Scott.

Assuming the judgment to be void, the primary question is: Have they such

right? There is no question but that a court has inherent power to purge its records of void

judgments. It may do so of its own motion. It must be conceded that a party to the record,

adversely affected by a void judgment, may have the judgment vacated as a matter of

right -- and this without a showing of a meritorious defense. Hole v. Page, 20 Wash. 208,

54 P. 1123; Batchelor v. Palmer, 129 Wash. 150, 224 P. 685. The parties to the record

(the Pumneas) in this case, however, are not adversely affected by the judgment in

question. For they have parted with their interest in the property, and the judgment has

been satisfied. An order vacating the judgment would affect their rights or liabilities in no

manner whatsoever. As to them it is 'functus officio, wherefore the question of the

legality or illegality of its obtention is a mere abstraction with which it is no part of the

business of appellate courts to deal.' Davis v. Blair, 88 Mo.App. 372.

VVV

OVERVIEW OF VOID JUDGMENTS IN WISCONSIN

Orders or "[j]udgments entered contrary to due process are void." Neylan v.

Vorwald, 121 Wis.2d 481, 488, 360 N.W.2d 537, 540 (Ct. App. 1984) (citations omitted).

A void judgment or order is something very different from a valid one. Id. at 496, 360

N.W.2d at 544. "[I]t is legally ineffective[,] may be collaterally attacked at any time in

any proceeding, state or federal [and] it should be treated as legally ineffective in the

subsequent proceeding. Even the party which obtained the void judgment may

collaterally attack it." Id. A void judgment cannot be validated by consent, ratification,

waiver or estoppel. Id. at 495, 360 N.W.2d at 544. This principle is "of ancient and

universal application." We conclude that the term "order" in 769.205(4) must be

interpreted to mean a "valid order" to avoid an absurd result. Upon Nowak's 1991 motion,

the trial court applied then effective Section(s) 767.65(40), Stats., 1991-92, and vacated

registration of the Arizona judgment. The order vacating the Arizona registration of

judgment was never appealed and remains in effect. Neither party disputes that the

Arizona judgment was entered without notice and contrary to due process, rendering it

void. An order issued contrary to due process is not an order issued "under a law

substantially similar to this chapter." Section 769.205(4), Stats. Because the Arizona

judgment is void, it is not recognized under Section(s) 769.205(4). We need not give full

faith and credit to the void judgment of another state. Arizona's invalid judgment does not

preclude Wisconsin from establishing paternity and support. 04/10/96, STATE OF

WISCONSIN, ex rel v. BRIAN L. NOWAK, 1996, WI. 547. Void judgments can always

be challenged. Moreover, there is no need for a trial in any of the three instances. As a

matter of law, the creditor violated the WCA and must suffer the consequences of its

wrongful repossession and prohibited debt collection practices. These consolidated cases

concern a car loan credit company's repossessions of three different customers' cars. The

customers brought suit claiming violations under the Wisconsin Consumer Act (WCA)

for wrongful repossession of their autos and prohibited debt collection practices. The

basis for these causes of action was the alleged commercial practice of the loan company

creditor to commence replevin actions in a county where venue does not lie. The two trial

courts handling these three cases granted summary judgment to the creditor on the

wrongful repossession claim finding that each customer waived his or her claim by not

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appearing at the replevin hearing and objecting to venue. While one trial court left the

claim of prohibited debt collection practices for the trier of fact, the other used waiver to

dismiss the prohibited debt collection practices claim as well. We reverse both trial

courts. The WCA plainly treats venue as a jurisdictional issue. Therefore, the failure to

have proper venue means the judgment is void. Void judgments can always be

challenged. Moreover, there is no need for a trial in any of the three instances. As a

matter of law, the creditor violated the WCA and must suffer the consequences of its

wrongful repossession and prohibited debt collection practices. Community Credit is

correct that the determination of whether the judgments were void or voidable is critical

in this case. A void judgment is a mere nullity, and any proceedings founded upon it are

equally worthless. See Fischbeck v. Mielenz, 162 Wis. 12, 17, 154 N.W. 701, 703

(1916); Neylan v. Vorwald, 124 Wis.2d 85, 99, 368 N.W.2d 648, 656 (1985). A void

judgment cannot create a right or obligation, as it is not binding on anyone. See id. A

voidable judgment, on the other hand, has the same effect and force as a valid judgment

until it has been set aside. See Slabosheske v. Chikowske, 273 Wis. 144, 150, 77 N.W.2d

497, 501 (1956). Thus, a voidable judgment protects actions taken under it before it is

reversed. See id. Here, if the default judgments were voidable, then they were valid

judgments until vacated. If so, Community Credit's repossessions were based on valid

judgments and were not wrongful. However, if the default judgments were void, they had

no legal effect. If void, they were not valid judgments. Thus, they did not authorize

Community Credit's repossessions of the cars. Kett v. Community Credit Plan Inc., 222

Wis.2d 117, 586 N.W.2d 68 (Wis.App. 09/23/1998). And a void judgment can be

attacked at anytime. See Neylan, 124 Wis.2d at 97, 368 N.W.2d at 655. This is an

appeal from an order denying a motion to vacate a small claims judgment. The motion

claimed that the judgment was void, thus requiring that the court vacate it pursuant to

Section 806.07, Stats. The trial court denied the motion on the basis that the exclusive

remedy to reopen a small claims default judgment is time barred if brought more than six

months after the entry of judgment, contrary to Section 799.29(1)(c), Stats. Because this

case involves a motion to vacate a void judgment, not a motion to reopen a default

judgment, this court reverses. Benitez v. Fasick, 220 Wis.2d 358, 582 N.W.2d 505

(Wis.App. 05/27/1998). No statutory time limit applies to a motion to vacate void

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judgments. A void judgment may be expunged at any time. See West v. West, 82 Wis.2d

158, 166, 262 N.W.2d 87, 90 (1978). Laches do not apply to a motion to vacate for

voidness either. See id. Nor does the reasonable time test of Section 806.07(2), Stats.,

apply to this motion. See Neylan v. Vorwald, 121 Wis.2d 481, 497, 360 N.W.2d 537, 545

(Ct. App. 1984). We recognize that "'void judgment cannot be validated by consent,

ratification, waiver, or estoppel.'" Neylan, 124 Wis. 2d at 97, 368 N.W.2d at 655

(quoting Kohler Co. v. DILHR, 81 Wis. 2d 11, 25, 259 N.W.2d 695, 701 (1977). Where

material facts are undisputed, the question of whether a judgment is void for lack of

jurisdiction is a matter of law that we review de novo. State v. Big John, 146 Wis. 2d

741, 748, 432 N.W.2d 576, 579 (1988). A judgment is void if the court rendering it

lacked subject matter jurisdiction. See Wengerd v. Rinehart, 114 Wis. 2d 575, 578, 338

N.W.2d 861, 864 (Ct. App. 1983). Also, a void judgment is subject to collateral attack.

State v. Madison, 120 Wis. 2d 150, 158, 353 N.W.2d 835, 839 (Ct. App. 1984). Section

806.07, Stats., governs relief from judgments. The Judicial Council Committee's Note,

1974, 67 Wis. 2d 726, states the section "is substantially equivalent to Federal Rule 60(b)

and replace[d former sec.] 269.46." *fn12. This court stated in West v. West, 82 Wis. 2d

158, 165-66, 262 N.W.2d 87 (1978), that the former sec. 269.46(1) "presupposes the

entry of a valid judgment . . . It has nothing whatsoever to do with the vacation of a void

judgment." A void judgment may be expunged by a court at any time. In Kohler Co. v.

ILHR, 81 Wis. 2d 11, 25, 259 N.W.2d 695 (1977. "The fact that the award came many

years after the void order is of no consequence. In Halbach v. Halbach, 259 Wis. 329,

331, 48 N.W.2d 617 (1951), the void judgment was challenged ten years after entry. The

court stated that laches did not apply even if the plaintiff had been dilatory or

lackadaisical in his efforts to overturn the judgment. 'It is the duty of the court to annul

an invalid judgment.' "A void judgment cannot be validated by consent, ratification,

waiver, or estoppel. Furthermore, void judgments may be attacked collaterally. The 1960

application was still valid." (Footnote omitted.) There is no time limit on an attack on a

judgment as void. The one-year limit applicable to some Rule 60(b) motions is expressly

inapplicable, and even the requirement that the motion be made within a 'reasonable

time,' which seems literally to apply to motions under Rule 60(b)(4), cannot be enforced

with regard to this class of motion. A void judgment cannot acquire validity because of

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laches on the part of the judgment debtor. A void judgment is something very different

than a valid judgment. The void judgment creates no binding obligation upon the parties,

or their privies; it is legally ineffective . . . The judgment may also be set aside under

60(b)(4) within a 'reasonable time,' which, as here applied, means generally no time limit,

or the enforcement of the judgment may be enjoined. The judgment may also be

collaterally attacked at any time in any proceeding, state or federal, in which the effect of

the judgment comes in issue, which means that if the judgment is void it should be

treated as legally ineffective in the subsequent proceeding. Even the party which obtained

the void judgment may collaterally attack it. And the substance of these principles are

equally applicable to a void state judgment. A party attacking a judgment as void need

show no meritorious claim or defense or other equities on his behalf; he is entitled to

have the judgment treated for what it is, a legal nullity, but he must establish that the

judgment is void." (Footnotes omitted.) The Judicial Council Committee's Note, 1974,

69 Wis. 2d 726, states that sec. 806.07, Stats., is substantially equivalent to Federal Rule

60(b) and replaces sec. 269.46, Stats. (1973). There is no suggestion that the committee

intended a departure from former Wisconsin law which is consistent with present federal

cases construing Federal Rule 60(b). Section 806.07(2), Stats., requiring motions to

vacate orders or judgments to be brought in a "reasonable time" does not apply to void

judgments. 05/29/85, KATHLEEN NEYLAN v. RICHARD VORWALD, 368 N.W.2d 648,

124 Wis. 2d 85.

**** On the issue of whether a land contract vendee has standing to assert the lack

of notice of foreclosure proceedings to his vendor, we agree with the similar result

reached by the court of appeals in the recent case of Preston v. Iron County, 105 Wis.

2d 346, 314 N.W.2d 131 (Ct. App. 1981). That case involved the granting of a tax

deed under sec. 75.12, Stats. However, we disagree with the court's attempt in

Preston to distinguish the court of appeal's decision in Young on the ground that

Young involved a partially void judgment. As stated above, a partially void

foreclosure judgment may not exist in this area. ******** MATTER FORECLOSURE

TAX LIENS, 316 N.W.2d 362, 106 Wis. 2d 244 (March 1982). **** It is manifest that the

action of the court in tinkering with what it knew to be a void judgment constituted an

abuse of discretion. Although the court's motive -- to save the parties the time and

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expense of another proceeding -- was laudable, its efforts were based upon an erroneous

view of the law. This constitutes an abuse of discretion. State v. Hutnik, 39 Wis. 2d 754,

159 N.W.2d 733 (1968). See also West v. West, 82 Wis. 2d 158, 262 N.W.2d 87 (1978),

in respect to a court's jurisdiction where a void judgment has been entered. The fact that

the award came many years after the void order is of no consequence. In Halbach v.

Halbach, 259 Wis. 329, 331, 48 N.W.2d 617 (1951), the void judgment was challenged

ten years after entry. The court stated that laches did not apply even if the plaintiff had

been dilatory or lackadaisical in his efforts to overturn the judgment. "It is the duty of the

court to annul an invalid judgment." A void judgment cannot be validated by consent,

ratification, waiver, or estoppel. Furthermore, void judgments may be attacked

collaterally. The 1960 application was still valid. A judgment or order which is void may

be expunged by a court at any time. Such right to expunge a void order or judgment is not

limited by statutory requirements for reopening, appealing from, or modifying orders or

judgments. [Cases cited.]" State ex rel. Wall v. Sovinski, 234 Wis. 336, 342, 291 N.W.

344 (1940). See also, Home Bank v. Becker, 48 Wis. 2d 1, 7, 179 N.W.2d 855 (1970). It

is a well-settled rule that lack of subject matter jurisdiction may not be consented to or

waived. This "long-standing case law" rule is retained by sec. 802.06(8)(c), Stats.,

Clausen and Lowe, The New Wisconsin Rules of Civil Procedure: Chapters 801-803, 59

Marq. L. Rev. 1, 52 (1976), citing Damp v. Town of Dane, 29 Wis. 419 (1872). A void

judgment or order may be expunged or vacated by a court at any time. State v. Banks,

105 Wis. 2d 32, 43, 313 N.W.2d 67, 72 (1981). Thus, the court was without authority to

extend the injunction beyond two years from the date the injunction first was entered.

When a court acts in excess of its jurisdiction, its orders or judgments are void and may

be challenged at any time. Kohler Co. v. DILHR, 81 Wis. 2d 11, 25, 259 N.W.2d 695,

701 (1977). The extended injunction thus is void. A void judgment cannot be validated

by consent, ratification, waiver, or estoppel and may be attacked collaterally. Moreover,

it is axiomatic that a judgment secured without obtaining personal jurisdiction over a

party is void, and a void judgment can be collaterally attacked at any time in any

proceeding, state or federal. See Neylan v. Vorwald, 124 Wis. 2d 85, 99, 368 N.W.2d

648 (1985).

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