A REFERENCE FOR THOSE WHO WISH TO BE PRO SE LITIGANTS
COMPILED IN JANUARY OF 2007 A judge is required to show a little lenience toward a Pro Se litigant: Hayes vs Kerner and children OUTLINE CASE LAW PARTIICULARLY RELEVANT TO THE PRO SE LITIGANT o Non-Lawyer pro se litigants not to be held to same standards as a practicing lawyer o Defense against dismissal of complaint for failure to state a claim o On Judicial Immunity o On Absolute Immunity for Judges o On Judges violation of oath of office o Arbitrary Exercise of Government Powers o Pro Se litigants entitled to attorney's fees U.S. Constitutional Issues (5th, 7th, 13th, 14th) Civil Rights Issues (1983, 1985) Judicial Notice: definition Reasons to Vacate Void Judgments - Lack of Jurisdiction Powe v. US: what does "citizen" mean? ================================================================== ========== TOPIC: PRO SE LITIGANT CASE LAW ================================================================== ========== Non-Lawyer pro se litigants not to be held to same standards as a practicing lawyer
Many pro se litigants will use this in their pleadings; "Pleadings in this case are being filed by Plaintiff In Propria Persona, wherein pleadings are to be considered without regard to technicalities. Propria, pleadings are not to be held to the same high standards of perfection as practicing lawyers. See Haines v. Kerner 92 Sct 594, also See Power 914 F2d 1459 (11th Cir1990), also See Hulsey v. Ownes 63 F3d 354 (5th Cir 1995). also See In Re: HALL v. BELLMON 935 F.2d 1106 (10th Cir. 1991)."
In Puckett v. Cox, it was held that a pro-se pleading requires less stringent reading than one drafted by a lawyer (456 F2d 233 (1972 Sixth Circuit USCA). Justice Black in Conley v. Gibson, 355 U.S. 41 at 48 (1957) "The Federal Rules rejects the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." According to Rule 8(f) FRCP and the State Court rule which holds that all pleadings shall be construed to do substantial justice." Defense against dismissal of complaint under Rule 12-B
There is legal sufficiency to show Plaintiff is entitled to relief under his Complaint. A Complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957) also Neitzke v. Williams, 109 S. Ct. 1827, 1832 (1989). Rule 12(b)(6) does not countenance dismissals based on a judge's disbelief of a complaint's factual allegations. In applying the Conley standard, the Court will "accept the truth of the well-pleaded factual allegations of the Complaint." On Judicial Immunity Civil Rights Vol 4, US Supreme Court Digest Page 555 Judges not totally Immune
87 SCT 1213 Pierson v. Ray
94 SCT 1683 Scheur v. Rhodes
96 SCT 984 Imbler v. Pathtman
98 SCT 2018 Monell v. Social SVS
98 SCT 2894 Butz v. Economov On Absolute Immunity for Judges A complaint is actionable against Judges under Title 42 U.S.C. 1985 (3), whose immunity does not extend to conspiracy under color of law. Section 1985(3) reaches both conspiracies under color of law and conspiracies effectuated through purely private conduct.
On Judges violation of oath of office Many judges have a total disregard for their oath of office under Title 28 Section 453, All judges take this oath of office swearing to uphold the U.S. Constitution.
Arbitrary Exercise of Government Powers Missouri v. Mackey, 127 US 205, 8 S Ct 1161
Minneapolis v. Herrick, 127 US 210, 8 S Ct 1176
Lepper v. Texas 139 US 462, 11 S Ct 577
Giozza v Tiernan, 148 US 657, 13 S Ct 721
Duncan v Missouri, 152 US 377, 14 S Ct 570 Pro Se litigants entitled to Fees:
Pro se litigants may be entitled to Attorney fees and costs under the Civil Rights Attorney's Fee Award Act of 1976, 90 Stat. 2641, as amended 42 USC 1988 U.S. Constitutional Issues: The Fifth Amendment, provides in pertinent part that "nor be deprived of life, liberty, or property, without due process of law..." Due process is denied when a meaningful hearing is denied as in this cause.
The Seventh Amendment, provides in pertinent part that "In suits at common law, where the value in controversy shall exceed twenty dollars, the right to trial by jury shall be preserved..." This language does not include a single reference to "manipulation" of a jury by the Court in a conspiracy with lawyers to design a verdict suitable to the Court through the use of lawyer rules, judicial rules, court rules, or otherwise trumped-up legal technicalities and instructions which effectively "handcuffs" the jury. All of these activities are no more or less than a denial of the right to a jury of peers with the constitutional authority to judge both the facts and law in a case.
The Thirteenth Amendment, provides in pertinent part that "Neither slavery nor involuntary servitude, except as a punishment for crime....., shall exist within the United States, or any place subject to their jurisdiction". These judges through their private conduct in conspiracy with the lawyer defendants, caused the Court to effectuate this Plaintiff to "Compulsory Involuntary Servitude", an act punishable under Title 18 1584 as a criminal act.
The Fourteenth Amendment Due Process Clause and Equal Protection clause (Section 1), expressly declares no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law..."
The Fourteenth Amendment, Section 3, provides in pertinent part that "No person shall hold any office, civil or military, under the United States or under any State.....who, having previously taken an oath,....as an executive or judicial officer of any State to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same...." USC 14th Ammendment (Deprived of the use of property) Tracy v. Ginzberg 205 US 170, 27 S Ct. 461
Wagner v Leser, 239 US 207, 36 S Ct 66
Fuentes v. Shevin 407 US 67, 92 S Ct 1983
Leis v Flynt, 439 US 438, 99 S Ct 698, 11 Ohio Ops 3rd 302
Kent.Dept. of Corrections v. Thompson, 490 US 454, 109 S Ct 1904
What constitutes property protected under constitution? Slaughter-House Cases, 16 Wall 36
Buchanan v Warley, 245 US 60, 38 S Ct 16
Liggett Co. v Baldridge, 278 US 105, 49 S Ct 57
Board of Regents v Roth, 408 US 564, 92 S Ct 2701
On Due Process Violation 5th and 14th Butler v. Perry, 240 US 328, 36 S Ct 288
Brinkerhoff- Faris Trust v Hill, 281 US 673, 50 S Ct 451
Curry v. McCanless, 307 US 357, 59 S Ct 900
*Rochin v California, 342 US 165, 72 S Ct 25, Alr2d 1396
*Ivanho Irrig. Dist. v. McCracken, 357 US 275, 78 S CT 1174
*Bartkus v Illinois, 359 US 121, 79 S Ct 676
*Gault 387 US 1, 87 S Ct 1428
*Wolff v McDonnell, 418 US 539, 94 S Ct 2963
**Bordenkircher v. Hayes, 434 US 357, 98 S Ct 663
**Rostker v. Goldberg, 453 US 57, 101 S Ct 2646
**States v. Goodwin 457 US 368, 102 S Ct 2485
**Colorado v. Connelly, 479 US 157, 107 S Ct 515
**DeShaney v. Winnebago, 489 US 189, 109 S Ct 998
**Collins v Harker, 112 S Ct. 1061 Jurisdiction of the case (Basic element of due process) Powell v. Alabama, 287 US 45, 53 S Ct 55, 84 ALR 527
Sense of fairplay shocked is not due process (Congress Barred) Galvan v Press, 347 US 522, 74 S Ct 737
Groban 352 US 330, 77 S Ct 510
Kinsella v United States, 361 US 234, 80 S Ct 297
Bodie v Conneticut, 401 US 371, 91 S Ct 780
Ross v Moffitt, 417 US 600, 94 S Ct 2437
United States v. Salerno, 481 US 739, 107 S Ct 2095
14th Ammendment is the due process denial right Collins v. Harker 112 S Ct 1061
Hebert v Louisiana, 272 US 312, 47 S Ct 103
Georgia Power v Decatur, 281 US 505, 50 S Ct 369
Discrimination as Violation of Due Process (5th Ammendment) Bowling v Sharpe, 347 US 497, 74 S Ct 693
Schneider v Rusk, 377 US 163, 84 S Ct 1187
Shipiro v Thompson 394 US 618, 89 S ct 1322
United States v Moreno, 413 US 528, 93 S Ct 2821
Johnson v Robinson 415 US 361, 94 S Ct 1160
Buckley v Valeo, 424 US 1, 96 S Ct 612
Mathews v De Castro, 429 US 181, 97 S Ct 431
Fullilove v Klutznick, 448 US 448, 100 S Ct 2758
Lyng v Castillo, 477 US 635, 106 S Ct 2727 Fourteenth Ammendment and 42 USCS 1983 Statutory requirement under color of law: Lugar v Edmondson Oil, 457 US 922, 102 S Ct 2744 Civil Rights Issues: A Continuance of Constitutional Issues
Title 42 USC 1983 provides in relevant part that: "every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State....subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution. ..shall be liable to the party injured...."
A Title 42 1985 action which seeks compensatory and punitive damages in conjunction with equitable relief as in this case is considered a legal claim, entititling Plaintiff to a jury trial. See An-Ti v. Michigan Technological Univ., 493 F. Supp. 1137.
Plaintiff alleges a "class based", invidiously discriminatory animus is behind the conspirators' action as the Court records reflect. That the actions were clearly a product of bias and prejudice of the Court. See Griffen v. Breckridge, 403 U.S. 88, 102 (1971)
The U.S. Supreme Court acknowledged in Bray v. Alexandria Women's Health Clinic 113 S.Ct.753 (1993) that the standard announced in Griffen was not restricted to "race" discrimination. It is therefore reasonable to assume that 1985 (3) may be used for "class-based" claims other than race which is alleged in this case.
The defendant lawyers acting in conspiracy with state actors under color of law have become state actors in this case. The U.S. Supreme Court has ruled that "private parties", lawyers in this case, may be held to the same standard of "state actors" where the final and decisive act was carried out in conspiracy with a state actor or state official. See Dennis v. Sparks, 449 U.S. 24, 101 S.Ct., 183 also See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598.
Plaintiff's Complaint is based in part on discrimination and political affiliations by lawyers and lawyer-judges, under 42 USCA 1983 & 1985. See reversal case Acevedo-Diaz v Aponte (1993, CA1 Puerto Rico) 1 F3d 62, summary op at (CA1 Puerto Rico) 21 M.L.W. 3212, 14 R.I.L.W. 389.
Section 1985(3) under Title 42 reaches both conspiracies under color of law and conspiracies effectuated through purely private conduct. In this case Plaintiff has alleged a class-based, invidiously discriminatory animus is behind the conspirators' action as the court records reflect. That actionable cause is the treatment of a non-lawyer pro se litigant as a distinct "class-based subject" of the Court, wherein denial of equal protection of the laws and denial of due process was clearly the product of bias and prejudice of the Court. See Griffen v. Breckenridge, 403 U.S. 88, 102 (1971).
The U.S. Supreme Court acknowledged in Bray v. Alexandria Women's Health Clinic 113 S.Ct. 753 (1993) that the standard announced in Griffen was not restricted to "race" discrimination. It is therefore reasonable to assume that 1985(3) may be used for "class-based" claims other than race as alleged in this case. It is also important to note in Bray the U.S. Supreme Court's interpretation of the requirement under 1985(3) that a private conspiracy be one "for the purpose of depriving... any person or "class" of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, which the Court said mandates "an intent to deprive persons of a right guaranteed against private impairment.
The U.S. Supreme Court in Griffen emphasized 1985(3) legislative history was directed to the prevention of deprivations which shall attack the equality of rights of American citizens; that any violation of the right, the animus and effect of which is to strike down the citizen, to the end that he may not enjoy equality of rights as contrasted with his and other citizens' rights, shall be within the scope of remedies... Id. at 100.
Supreme Court has ruled that "private parties" may be held to the same standard of "state actors" in cases such as the instant cause where the final and decisive act was carried out in conspiracy with a state official. See Dennis v. Sparks, 449 U.S. 24, 101 S. Ct., 183 and Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598. Jurisdictional Issues: It is proper for this District Court to take Jurisdiction of any civil action authorized by law to be commenced by any person. See Title 28 Section 1343 (1)(2)(3)(4) .
Jurisdiction is proper under Title 28 Sections 1332, 1335, 1357, 1441 and 1603.
The First issue is "Convenience" and second issue is the "interest-of- justice" standard under 28 USCA 1406.
Dismissal Issues:
The Complaint should not be dismissed unless it appears to a certainty that Plaintiffs would be entitled to no relief under any state of facts that could be proved in support of the claims. See Gomez v Toledo (1980, US) 64 L Ed 2d 572, 100 S Ct 1920.
The allegations of a Complaint prepared by a state prisoner acting pro se are generally taken as true for purposes of motion to dismiss. See Hughes v Rowe (1980, US) 66 L Ed 2d 163, 101 S Ct 173.
RULE 60
The final judgement of this Court should be vacated under Rule 60(B). The Court is requested to weigh the interest in substantial justice against the simple need for preserving finality of the judgement. See Expenditures Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institute, 1974, 500 F.2d. 808, 163 U.S. App.D.C.140. See also Brown v. Clark Equipment Co., D.C. Mc. 1982, 961 F.R.D. 166.
Court -a judgement to dismiss because of some trumped up technicality giving excuse to dismiss a non-lawyer pro se litigant's complaint with merit in a lawyer dominated Court hearing. In support of Plaintiffs Motion to vacate Judgement, the following cases are offered; Picking v. Pennsylvania Railway, (151 F2d.240) Third Circuit Court of Appeals.
The ruling of the court in this case held; "Where a plaintiff pleads pro se in a suit for protection of civil rights, the court should endeavor to construe the Plaintiff's pleading without regard to technicalities." In Walter Process Equipment v. Food Machinery 382 U.S. 172 (1965) it was held that in a "motion to dismiss", the material allegations of the complaint are taken as admitted." Rico Case Law:
The defendants constitute an illegal enterprise in acts or threat of acts in violation of Civil Rico Federal Racketeering Act USC 18, 1961-1963 et seq. The following are particular violations: 18 USC 241: Conspiracy against Rights of Citizens:
18 USC 3: Accessory after the fact, knowing that an offense has been committed against the United States, relieves, receives, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment.
18 USC 242: Deprivation of Rights color of law of rights protected under the Constitution of the U.S.
18 USC 512: Tampering with a witness
18 USC 1341: Mail fraud
18 USC 1343: Wire fraud
18 USC 1503: Obstruction of justice
18 USC 1510: Obstructing of criminal investigation
18 USC 1513: Retaliating against a witness, victim or informant
18 USC 1951: Interference with interstate commerce
18 USC 1621: Perjury
18 USC 1001: Fraud
Continued statute of limitation in ongoing activity (conspiracy) (bankruptcy fraud) ================================================================== ========== TOPIC: Judicial Notice: definition ================================================================== ============ Judicial Notice is discretionary. With Judicial Cognizance, the judge is BOUND to act: See Black's Law, 6th Ed, pg 847
Judicial cognizance. Judicial notice or knowledge upon which a judge is bound to act without having it proved in evidence.
Judicial notice. (pg. 849) The act by which a court, in conducting a trial, or framing its decision, will, of its own motion or on request of a party, and without the production of evidence, recognize the existence and truth of certain facts, having a bearing on the controversy at bar, .... ================================================================== ========== TOPIC: Reasons to Vacate Void Judgments - Lack of Jurisdiction ================================================================== =========== Reasons to Vacate Void Judgments - Lack of Jurisdiction
January 2, 2004 Void Judgments Understanding Void Judgments
Definition of Void Judgment: any judgment which a court renders while lacking jurisdiction, either of the subject matter or the parties. * Wahl v. Round Valley Bank 38 Ariz , 411, 300 P. 955(1931), * Tube City Mining & Millng Co. v. Otterson, 16 Ariz. 305, 146p 203(1914); and * Millken v. Meyer, 311 U.S. 457, 61 S. CT. 339,85 L. Ed. 2d 278 (1940). Subject matter jurisdiction can never be presumed, waived, or constructed, even by mutual consent of the parties, and it has two parts: (1) the statutory or common law authority for the court to hear the case, and
(2) the appearance and testimony of a competent fact witness - in other words, sufficiency of pleadings.
When we examine a judgment, the following indices tell us whether a court had subject matter jurisdiction. Successful litigants will know each and every one of them by heart. Subject matter jurisdiction usually fails because of one of these reasons: (1) No petition in the record of the case, Brown v. VanKeuren, 340 Ill. 118,122 (1930).
(2) Defective petition filed, Same case as above.
(3) Fraud committed in the procurement of jurisdiction, Fredman Brothers Furniture v. Dept. of Revenue, 109 Ill. 2d 202, 486 N.E. 2d 893(1985)
(4) Fraud upon the court, In re Village of Willowbrook, 37 Ill, App. 3d 393(1962)
(5) Judge does not follow statutory procedure, Armstrong v. Obucino, 300 Ill 140, 143 (1921)
(6) Unlawful activity of a judge, Code of Judicial Conduct.
(7) Violation of due process, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019(193 ; Pure Oil Co. v. City of Northlake , 10 Ill.2d 241, 245, 140 N.E. 2d 289 (1956); Hallberg v Goldblatt Bros., 363 Ill 25 (1936), ( If the court exceeded it's statutory authority. Rosenstiel v. Rosenstiel, 278 F. Supp. 794 (S.D.N.Y. 1967)
(8) One or more actions violated 11 U.S.C. 362(a), in re Garcia, 109 B.R. 335 (N.D> Illinois, 1989).
(9) No proper pleadings presented a justiciable issue to the court, Ligon v. Williams, 264 Ill. App 3d 701, 637 N.E. 2d 633 (1st Dist. 1994)
(10) A complaint states no cognizable cause of action against that party, Charles v. Gore, 248 Ill App. 3d 441, 618 N.E. 2d 554 (1st. Dist. 1993)
(11) A person/law firm prohibited by law to practice law in that jurisdiction represented a litigant before the court.
(12) The judge engaged in bribery (the Alemann cases, Bracey v Warden , U.S. Supreme Court No. 96-6133(June 9, 1997)
(13) No one properly issued a summons.
(14) No one made service of process pursuant to statute and Supreme Courth Rules, Janove v. Bacon, 6 Ill. 2d 245, 249, 218 N.E. 2d 706, 708 (1953)
(15) Someone did not comply with the rules of the Circuit court.
(16) Someone did not comply with the local rules of the special court (one where the judge does not act impartially, Bracey v. Warden, U.S. Supreme Court No. 96-6133(June 9, 1997)
(17) The statute is vague, People v. Williams, 638 N.E. 2d 207 (1st Dist. (1994)
(18) The movant did not give proper notice to all parties, Wilson v. Moore, 13 Ill. App. 3d 632, 301 N.E. 2d 39 (1st Dist. (1973)
(19) A judge based an order/judgment on a void order/judgment, Austin v. Smith, 312 F 2d 337, 343(1962);English v. English, 72 Ill. App. 3d 736, 393 N.E. 2d 18 (1st Dist. 1979) or
(20) Someone violated the public policy of the State of Illinois, Martin-Tregona v Roderick, 29 Ill. App. 3d 553, 331 N.E. 2d 100 (1st Dist. 1975)
(21) A judge does not validly hold office because of the absence of or a defect in one or more of the following: a. qualification as a candidate (typically include American citizenship, bar membership, registered voter status, a number of years of service as an attorney, filing of a financial statement that shows compliance with law, not serving in any other branch of government),
b. appointment or election to office (illegal campaign contributions or other illegal financial entanglements can disqualify),
c. acceptance of appointment or elected position (some never bother to accept the appointment or elected position),
d. one or more loyalty oaths associated with qualification and service (a typical judge must swear the following loyalty oaths, evidenced by the signature of a person duly authorized to take acknowledgements): i. Elector's (voter registration) loyalty oath
ii. Bar member's oath
iii. Pre-appointment/election candidate's loyalty oath
iv. Candidate's oath
v. Public Officer's or Judge's loyalty oath
vi. Public employee's loyalty oath. About Loyalty Oaths and Appointments Many public employees have serious defects in their oath and appointment documents, and many do not have those documents on record as required by law. The wise litigant will obtain certified copies of all such documents for all officers of the court (judges, clerk, prosecutors or opposing counsel, and bailiffs), and move for the disqualification of any and all for whom valid oath and appointment documents do not exist.
The judge validly holds office if and only if a copy of the judge's oath of office exists, and you can rightly demand that the proper final oath sworn or affirmed upon taking office situates in the judge's chambers. You can go to his office and demand to see a copy of his oath of office at any time.
The federal laws covering judges and other public officials are to be found at 5 U.S.C. 3331, 28 U.S.C. 543, and 5 U.S.C. 1983. States typically have similar laws. A judge trespasses upon the court unless he complies with all of the provisions of relevant law. Once a proven trespasser upon the court (upon the law) not one of his judgments, pronouncements or orders have validity. All constitute nullities and have void status.
Upon discovering such a trespass, you will face serious difficulty getting the trespasser removed from office, and the fact that so many litigants give up in the process explains why so many criminal trespassers still function in public office. ================================================================== ========== TOPIC: Powe v. US: what does "citizen" mean? ================================================================== ========== Powe v. United States, 5 Cir., 1940, 109 F.2d 147, certiorari denied, 309 U.S. 679, 60 S.Ct. 717
I finally found it. It's quoted a bit different than the opinion quoted: In Powe v. U.S. 109 F2d 147, 149 (1940) the court determined the term `citizen,' when used in federal laws, excludes State citizens.
The court was specifically speaking about 18 U.S.C.A 51 in its deleiniation of citizens, however, that does not mean it does not apply to other stautory areas.
Interesting note: Appeals from the District Court of the United States
Proper quotes below: "In its construction [18 U.S.C.A. 51] it is proper to apply the rule that criminal laws are to be construed strictly, and to bear in mind that other rule that a construction is to be avoided, if possible, that would render the law unconstitutional, or raise grave doubts thereabout. In view of these rules it is held that "citizen" means "citizen of the United States", and not person generally, nor citizen of a State; and that the "rights and privileges secured by the Constitution or laws of the United States" means those specially and validly secured thereby. Thus limited, this section has been enforced as constitutional. " POWE v. UNITED STATES, 109 F.2d 147 (5th Cir. 1940)
OR
"In its construction [18 U.S.C.A. &Sect; 51] it is proper to apply the rule that criminal laws are to be construed strictly, .... In view of these rules it is held that "citizen" means "citizen of the United States", and not person generally, nor citizen of a State; and that the "rights and privileges secured by the Constitution or laws of the United States" means those specially and validly secured thereby. Thus limited, this section has been enforced as constitutional. " POWE v. UNITED STATES, 109 F.2d 147 (5th Cir. 1940)
OR taken out of context (perhaps)
"... it is held that "citizen" means "citizen of the United States", and not person generally, nor citizen of a State; ... POWE v. UNITED STATES, 109 F.2d 147 (5th Cir. 1940) United States 5th Circuit Court of Appeals Reports POWE v. UNITED STATES, 109 F.2d 147 (5th Cir. 1940)
POWE et al. v. UNITED STATES.
No. 9130.
Circuit Court of Appeals, Fifth Circuit.
January 17, 1940. Page 148 Appeals from the District Court of the United States for the Southern District of Alabama; John McDuffie, Judge. Sam B. Powe and others were convicted for conspiring to injure, oppress, threaten and intimidate a named citizen of the United States in the free exercise of his right and privilege as such citizen to speak and publish his views in certain newspapers, and they appeal. Reversed and remanded with direction. Harry T. Smith, D.R. Coley, Jr., and George A. Sossaman, all of Mobile, Ala., for appellants. Francis H. Inge, U.S. Atty., of Mobile, Ala., for appellee. Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges. SIBLEY, Circuit Judge. The five appellants were indicted (with another who was acquitted) for conspiring to injure, oppress, threaten and intimidate a named citizen of the United States in the free exercise of his right and privilege as such citizen to speak and publish his views in certain newspapers. Their several demurrers were overruled and appellants Page 149 were convicted and sentenced. Of the numerous rulings asserted to be error on this appeal we need consider only the judgment upon the demurrers. The grounds of demurrer to each count include these: That no crime against the United States is charged; that the right of free speech and free press is not secured by the Constitution and laws of the United States against infraction by individuals, but only by federal or State action; and that the counts are too vague. The eight counts are varying statements of the same conspiracy. Some of them say the conspiracy was to prevent future publications; others to oppress and injure because of past publications. Some counts state the nature of the publications, and the means to be used to oppress the writer; others fail so to state, baldly alleging in the words of the statute a conspiracy to injure and oppress the citizen of the United States in the exercise of or for having exercised his privilege of free speech and free press. One of the fullest statements is the second count, which charges that the conspiracy was to injure and oppress the executive editor of the Mobile Register and the Mobile Press, newspapers published in Mobile, Alabama, he being a citizen of the United States, in his exercise of his right and privilege secured to him by the Constitution and laws of the United States, to write and print in said newspapers his editorials exposing and condemning various forms of illegal gambling and illegal lotteries in Mobile County, Alabama, and calling upon the officials of the City of Mobile and County of Mobile, charged with the suppression thereof, to take action to suppress the same and to punish the offenders; the plan being to procure a photograph of the editor in a lewd or obscene act and to use the same in threatening to show the photograph, and in threatening to use it as evidence in prosecuting the editor, and thus to stop his publications; numerous overt acts to carry out the plan being alleged. Do these facts make an offense against the United States? The statute relied on in support of the indictment originated as Section 6 of the Act of May 31, 1870, 16 Stat. 141 , entitled "An Act of enforce the Right of Citizens of the United States to vote in the several States of this Union, and for other Purposes." It appeared in the Revised Statutes with some alteration as Section 5508; was carried without change into the Criminal Code as Section 19; and now appears as Section 51 of Title 18 of the United States Code, 18 U.S.C.A. 51. The applicable language is: "If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same * * * they shall be fined not more than $5,000 and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States." Some of the Sections of the Enforcement Act of 1870 were repealed in 1909, but Section 6, as then reenacted, stands good for whatever it properly covers. United States v. Moseley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355. In its construction it is proper to apply the rule that criminal laws are to be construed strictly, and to bear in mind that other rule that a construction is to be avoided, if possible, that would render the law unconstitutional, or raise grave doubts thereabout. In view of these rules it is held that "citizen" means "citizen of the United States", and not person generally, nor citizen of a State; and that the "rights and privileges secured by the Constitution or laws of the United States" means those specially and validly secured thereby. Thus limited, this section has been enforced as constitutional. Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; United States v. Waddell, 112 U.S. 76, 5 S.Ct. 35, 28 L.Ed. 673; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; United States v. Moseley, supra. In the Yarbrough case the right involved was that to vote in a Congressional election, as it was in the Moseley case; in the Waddell case it was the right to make a federal homestead entry; and in the Logan case it was the right to be secure from lawless violence while a prisoner in the hands of a United States Marshal. These matters, all within the federal power, Congress could protect under the general authority to pass "all necessary and proper laws", under U.S.C.A. Constitution, Art. 1, Sect. 8, Par. 18. But Section 5519 of the Revised Statutes, which undertook similarly to punish conspiracies against any person to deprive him of the equal protection of the laws, or Page 150 to prevent State authorities from affording such protection, was held unconstitutional, because neither the Fourteenth Amendment nor any other part of the Constitution put the matter of conspiracies by individuals touching such matters within the power of Congress, but only gave power to correct wrong action by the State or its officers. It was so held in United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290, where the person mobbed was in the custody of a State Sheriff; and in Baldwin v. Franks, 120 U.S. 678, 7 S.Ct. 656, 763, 30 L.Ed. 766, where the rights of a Chinese under a treaty of the United States were involved. It was again held that the power of Congress was not extended to protect against violations by individuals of the general rights of persons and citizens by the mention of such rights in the Fourteenth Amendment, U.S.C.A., in the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835. The reasoning of these cases, though opposed by some dissents, is full and convincing, and the conclusion reached as to the effect upon federal power of the Fourteenth Amendment has stood for more than two generations. Pursuing further the application of the statute now before us, in Baldwin v. Franks, supra, it was held the word "citizen" means citizen of the United States in a political sense, and did not include a resident Chinese. Again in Hodges v. United States, 203 U.S. 1, 27 S.Ct. 6, 51 L.Ed. 65, the section was invoked against conspirators who were charged with interfering with citizens in their right or liberty of contracting to work in a lawful occupation, but the court held that this was a common right of all persons, and the Fourteenth Amendment did not put it under federal protection except against State action; and the fact that the persons there involved were negroes did not bring the matter within the special ambit of the Thirteenth Amendment. Similarly in United States v. Wheeler, 254 U.S. 281, 41 S.Ct. 133, 65 L.Ed. 270, the right invaded by the conspirators was the citizen's right to remain in the State of his choice, and to remove only at his own will. The Court conceded the right to be fundamental and to belong to the citizens of each State, and to be guarded in part against State interference by Art. 4, Sect. 2 of the Constitution, but held that no federal offense was involved in an abduction done by individual conspirators. The only case cited to us in which a conspiracy against the right of freedom of speech was involved is United States v. Hall, in the Circuit Court of Alabama, 26 Fed.Cas. 79, No. 15,282. Justice Woods there upheld the indictment, but this was in 1871, before the decision of any of the above cited cases in the Supreme Court, and it is not reconcilable with his own opinion in United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290. We are controlled by the above cited decisions of the Supreme Court. That the right of free speech and a free press, understood with the limitations to prevent abuses which the law has always annexed to these freedoms, is fundamental to the continuance of free political institutions, and is the right both of citizens and other persons in the United States and the several States needs no reassertion. The ground has been covered recently and the right vindicated as against State action by federal power by virtue of the Fourteenth Amendment, in such cases as Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660; De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L. Ed. 278; Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066; Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Schneider v. State of New Jersey (Town of Irvington), 60 S.Ct. 146, 84 L.Ed. ___; Frank Hague v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423. But this effect of the Fourteenth Amendment on State action, as has been shown, is not enough to bring conspiracies of individuals within the punitive power of Congress under the section we are discussing. Nor can the special mention of freedom of speech and press in the First Amendment have that effect. The provision there is "Congress shall make no law * * * abridging the freedom of speech, or of the press." That the first ten amendments were intended as limitations on the power of the federal government and are not grants of power to it has been established from the beginning. A flat prohibition against the regulation of a matter in one direction cannot result in endowing Congress with power to regulate it in another direction. This amendment, while regarding freedom in religion, in speaking and printing, and in assembling and petitioning the government for redress of Page 151 grievances as fundamental and precious to all, seeks only to forbid that Congress should meddle therein. If Congress can make any law in behalf of these it is because of some power elsewhere expressly granted, or because it is a law necessary and proper to carry out such power. We are familiar with federal laws touching on freedom of speech and press such as the Espionage Law of 1917, 40 Stats. 217 , which rested on the war power of Congress and the general implied power to maintain the safety of the Government. See Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561; Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470. And we do not doubt that Congress may directly protect its citizens in their right to assemble peaceably and petition the federal government for redress, just as it may protect persons from unlawful violence while in federal custody, under what are called the implied powers of Congress. Federal elections might probably be directly protected by Congress although no question of race, color, or previous condition of servitude under the Fifteenth Amendment be present. But in the cases supposed Congress would interfere directly only because of the necessity to maintain a federal right in its integrity. Because the federal government is a republican one in which the will of the people ought to prevail, and because that will ought to be expressive of an informed public opinion, the freedom of speaking and printing on subjects relating to that government, its elections, its laws, its operations and its officers is vital to it. Assuming that for this reason Congress, if it finds it necessary, can legislate to maintain such freedom in that field, it does not follow that Congress can legislate generally to preserve such freedom in discussing religious affairs, or social or artistic matters, or matters of purely State concern. Again, by Art. 4, Sect. 4, of the Constitution the United States shall guarantee to every State a republican form of government. Should a tyranny be set up in a State accompanied by a suppression of free speech and press, conceivably the Congress might be called on, temporarily in the execution of this guaranty, to pass a law securing against individual violence free speech in such State; but the section before us is not such a law. The dividing line between the powers of the State and federal governments in preserving these great general rights of persons, and the difference between the rights and privileges of a citizen of the State and of the United States, was clearly recognized in United States v. Cruikshank, 92 U.S. 542, 552, 23 L.Ed. 588, when the section under discussion first came before the Supreme Court. It was there stated that the right of assembly to petition Congress would be "an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States", and "if it had been alleged * * * that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States." But since the indictment only alleged generally that the meeting was "for a lawful purpose", no crime was charged, because the protection of the right of assembly in general was in the power of the State. The other counts alleged conspiracies generally to deprive of the equal protection of the law, and of life and liberty without due process of law, and the Fourteenth Amendment was held not to extend federal power as to those matters beyond the controlling of State action. On the authority of the Cruikshank case the counts in the present indictment, which do not disclose what the speaking and printing conspired against related to, charge no offense, because the right to freely speak and print about matters in general is not "secured by the Constitution and laws of the United States." The other counts which state the speaking and printing related wholly to matters with which the City and County of Mobile were concerned, and with which the United States had no concern, expressly disclose the matter to have been beyond the authority of Congress, and not a right or privilege protected by the section. The demurrers to the indictment ought therefore to have been sustained. The judgment is reversed, the conviction set aside, and the cause remanded with direction to sustain the demurrers. Page 152 Page 178
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