Appeal Brief Addressing the Contempt of Court Charge For Seeking To Report Criminal Activities Related To Aviation Disasters and National Security
The following is the appeal brief filed by Rodney Stich in pro se on April 4, 1989, as he appealed the criminal contempt of court charge arising from his attempts to report criminal activities and exercising federal defenses against the massive violations of federally protected rights that were parallel efforts to halt his exposure of corruption in key governments offices--including that corruption responsible for the conditions that enabled hijackers to seize four airliners on 9-11.
Former federal agent Rodney Stich sought to report to a federal court criminal activities that he and a group of other former government agents had discovered. The mandatory requirement to report a federal crime to a federal judge (or other federal officer) arises under the federal crime reporting statute, Title 18 U.S.C. Section 4.
The same lawsuit also exercised protections guaranteed to any person suffering harm from violations of his federally protected rights. The lawsuit was filed under the Civil Rights Act and the Declaratory Judgment Act, and other statutory and constitutional rights. Most of these civil rights violations were perpetrated by California and federal judges insuring the success of a bizarre lawsuit filed by a San Francisco law firm that was reported to be a front for the CIA by several reliable sources.
It was important to stop Stich's access to the federal courts. His lawsuit exposed vast areas of corruption implicating people holding key government positions, and the lawsuit would make known to others about the right to report government corruption to a federal judge.
The dozens of footnotes that were included with the original appeal brief are not shown here, as they did not convert from the original Word Perfect program to the html shown here.
RODNEY F. STICH
P.O. Box 5
Alamo, California 94507
Telephone: (415) 820-7250
Appellant in pro se
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) NO. 88-1410
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) No. 88-1410
RODNEY F. STICH, Defendant/Appellant
OPENING BRIEF FOR APPELLANT
CR No. 124 RAR
On Appeal From the United States District Court
For the Northern District of California
Judge Raul Ramirez
TABLE OF CONTENTS
TABLE OF CONTENTS i
STATEMENT OF ISSUES PRESENTED FOR REVIEW
STATEMENT OF THE CASE AND PROCEEDINGS
I. The Court Lacked Jurisdiction, as a matter of law, to initiate contempt proceedings, as the injunctive order was on appear
II. A Party Cannot Be Held In Contempt If Compliance With the Injunctive Order Caused Waiver Of A Right
III. The Denial Of Due Process Injunction Was Beyond the Judge's Jurisdiction
A. Violates Rights and Protections Under the First Amendment
B. Violates Rights and Protections Under the First Amendment
B. Violates Rights and Protections Arising Under the Fourteenth Amendment
C. Violates Rights and Protections Arising Under the Federal Supremacy Clause
D. The Injunctive Order Violates Rights and Protections Arising Under the Declaratory Judgment Statutes
E. The Injunctive Order Violates Rights and Protections Arising Under the Civil Rights Act
F. The Injunctive Order Violates Rights and Protections Arising Under the RICO Act
G. The Injunctive Order Violates Rights Arising Under Federal Rules of Court
H. The Injunctive Order Deprived Appellant of Federal Court Access and the Only source Of Relief Available To Address the Serious Violations of Federally Protected Rights, While Simultaneously Protecting Those Committing the Violations of the Same Rights
I. The Injunctive Order Violates Rights and Protections Arising Directly Under the U.S. Constitution and Under a Biven's Claim
J. The Injunctive Order Unconstitutionally Shifted Petitioner's Sole Source of Relief From Federal Courts to Those State Agents Committing the Violations of Federally Protected Rights
L. The Injunctive Order Violated Responsibilities to Report Government and Judicial Corruption, and Was Intended to Protect such Misconduct
M. The Whistleblower Statutes Encourage and Protect Parties Who Report Government and Non-Government Misconduct, Which is at the Heart of the Judicial Attacks Upon Appellant
N. The Nature of the Injunctive Order Exceeded the Jurisdiction of Any Federal Judge
O. The Intent of Injunctive Orders Is to Protect a Party from Irreparable Harm When There Are No Other Remedies, and Not to Bar a Party Suffering Such Harm From Obtaining Relief
IV. A Void Order Cannot Support a Criminal Contempt Charge
A. The Dismissal of the Underlying Complaint Violated Due Process
V. Grounds For Criminal Contempt Must Be Proven Beyond a Reasonable Doubt Standard
VI. The Injunctive Order Was Unclear and Ambiguous
VII. The Injunctive Order Sought Support For Its Legitimacy in Major Violations of Constitutional and Federal Law
VIII. Procedural Protections Were Violated
A. The Justice Department Withheld Evidence
IX. Appellant Was Denied the Constitutional Right To a Jury Trial, and Then Prosecuted and Tried by Those Threatened by His Exposure Activities
X. Appellant Was Denied Legal Counsel
XI. Appellant Was Denied Findings of Fact and Conclusions of Law, Making It Impossible To Know the Lower Court's Determination of the Multiple Defenses
Anders v. California, 386 U.S. 738 (1967)
Beacon Theatres, Inc. v. Westover, 359 U.S. 500
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971)
Brady v. Maryland, 373 U.S. 83 (1963)
Bush v. Lucas, 103 S.Ct. 2404 (1983)
Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976)
Conley v. Gibson, 355 U.S. 45
Dennis v. Sparks, 449 U.S. 224 (1980)
Donovan v. Mesola, 761 F.2d 1411 (11th Cir. 1985)
Duncan v. Louisiana, 391 U.S. 145
Dykes v. Hoseman, 743 F.2d 1488 (11th Cir. 1984)
England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411 (1964)
Escalera v. N.Y. Housing Auth, 425 F.2d 853 (2nd Cir. 1970)
Gardener v. Toilet Goods Assn., 387 U.S. 167 (1967)
Gibson v. Berryhill, 411 U.S. 564 (1973)
Haines v. Kerner, 404 U.S. 519 (1972)
Jackson Dairy v. Hood, 596 F.2d 70 (2d Cir. 1979)
Johnson v. Virginia, 373 U.S. 61 (1963)
Jordon v. Gilligan, 500 F.2d 701 (6th Cir. 1974)
Lombard v. Board of Educ., 502 F.2d 631 (2d Cir. 1974)
Matter of Thorp, 655 F.2d 997 (1981)
McNeese v. Board of Education, (1963) 373 U.S. 668
Miofsky v. Superior Court, 703 F.2d 332
Mitchum v. Foster, (1972) 407 U.S. 225
Monroe v. Pape, (1961) 365 U.S. 167
National Ass'n of Letter Carriers v. Sombrotto, 449 F.2d 915 (2d Cir. 1971)
Perrin v. Perrin, 408 F.2dd 107 (3rd Cir. 1969)
Pickering v. Board of Education, 391 U.S. 563 (1968)
Public Service Com. v. Wycoff Co, 344 U.S. 237
Pulliam v. Allen, (1984) 104 S.Ct. 1970
Rankin v. Howard, 633 F.2d 844 (9th Cir. 1980)
Re Burrus, 136 U.S. 586
Ridgeway v. Baker, 720 F.2d 1409 (5th Cir. 1983)
Roso-Lino Beverage Distributors, Inc. v. Coca-Cola, 749 F.2d 124 (2nd Cir. 1984)
Sherman v. Yakahi, 549 F.2d 1287 (1977)
Stanley Fizer Assoc. v. Sport-Billy P.R.D., 608 F.Supp. 1033 (D.C.N.Y. 1985)
Stich v. Federal Aviation Administration, DC Nd Cal No. 74982 RHS; CA No. 75-2300)
Stich v. National Transportation Safety Board, (DC ND Cal No. 80-4526SAW; CA No. 82-8272)
Stump v. Sparkman, (1978) 435 U.S. 349
United States v. Hamden, 552 F.2d 276 (9th Cir.1977)
U.S. v. Holtzman,762 F.2d 720 (9th Cir. 1985)
28 U.S.C.§ 144
28 U.S.C.§ 455
28 U.S.C.§ 1651
28 U.S.C.§ 2201
28 U.S.C.§ 2202
STATEMENT OF THE ISSUES
1. The court lacked jurisdiction to hold appellant in contempt, as the injunctive order was on appeal.
2. The injunctive order was void, as a federal judge lacks authority to suspend the rights and protections under the laws and Constitution of the United States.
3. The injunctive order was void, as it sought support in earlier illegal and unconstitutional acts (deliberately reversing the frivolous criteria to "support" the summary judgment dismissal; denying appellant Fifth Amendment, statutory and case law, rights to a federal court forum when federal causes of action of constitutional magnitude are raised).
4. A party cannot be held in contempt for exercising rights that would otherwise be lost.
5. The injunctive order, as applied, punished appellant for refusing to sequester evidence relating to a major national scandal involving air disaster felonies and misconduct, the cover-up of such misconduct by the Department of Justice and the Ninth Circuit, and the judicially engineered and protected scheme in the California courts to destroy appellant's financial and freedom base, and thus halt the exposure activities.
6. The injunctive order suspended for appellant, the rights and privileges under the Fifth and Fourteenth Amendments; directly under the Constitution, under Bivens actions, under declaratory judgment statutes, under Civil Rights Act, under RICO Act, under whistleblower statutes and case law;
7. The injunctive order wrongfully shifted responsibilities to provide relief from federal question violations to the state actors committing the violations.
8. The criminal contempt reversed the requirement that public interests be protected, and that lawful exercise of judicial responsibility be protected. The injunctive order continued the horror and death inflicted upon unsuspecting U.S. citizens and citizens of foreign nations; and protected the unlawful and unconstitutional actions of Ninth Circuit judges and justices.
9. The injunctive order sought support in the unlawful and unconstitutional dismissal of the underlying complaint.
10. The intent of the injunctive order was to silence dissent relating to an air disaster and superimposed government and judicial scandal.
11. Appellant was denied the stipulated jury trial that was based upon waiving right to trial before a district court.
12. Appellant was denied the jury trial to avoid the obvious bias of being prosecuted by the Department of "Justice," and the federal courts of the Ninth Circuit, both of whom are threatened with grave consequences if appellant's exposure actions reach public attention.
13. The prosecutor withheld evidence.
14. The prosecutor protected the misconduct by Judge Schwartz and his law clerk, acting in unison and conspiracy.
15. Judge Ramirez refused to disqualify himself when requested, despite the obvious bias.
16. The part time magistrate was biased, as his appointment and retention was based upon satisfying the Department of Justice and federal judges and justices of the Ninth Circuit, who are threatened by appellant's exposure activities.
17. Appellant was forced to file his appeal brief before Judge Ramirez without legal counsel, and has been again sabotaged by legal counsel in the filing of this brief.
STATEMENT OF THE CASE AND PROCEEDINGS
1. Jurisdictional Statement
The Court of Appeals has jurisdiction over this appeal pursuant to 28 U.S.C. section 1291.
Final judgment was entered in the cause below on October 4, 1988. Notice of Appeal was filed by appellant in pro se on October 11, 1988. The appeal is timely. F.R.A.P. Rule 4(a).
3. Bail Status
Appellant is currently released on bail pending his appeal, which appellant obtained while in prison, after the magistrate and the district judge refused to grant him bail pending appeal.
4. The Proceedings Below
On July 30, 1986, district judge Milton Schwartz, Eastern District of California, entered an order granting injunctive relief requested by the defendants in a complaint filed by appellant Rodney Stich. The complaint alleged multiple federal causes of action, of constitutional magnitude, under the Civil Rights Act, RICO Act, declaratory judgment statutes, and directly under the U.S. Constitution as a Bivens action, case number 86-0210 MLS. Excerpts of the Record, hereinafter "Ex," p.1.
The injunctive order sought support by the placement of a frivolous label by Judge Schwartz upon the complaint seeking relief from the multiple federal causes of action. The Injunctive order barred appellant
"from filing any action or actions in any United States District Court, or in any state court, until his current state court action ... becomes final and he has exhausted all his state court appellate remedies against defendants ... after the judgment in that state action has become final and all [state] appellate processes have been exhausted, this bar to further actions shall still apply to any and all claims precluded by the doctrines of res judicata and/or collateral estoppel."
The injunctive order barred appellant from exercising federal remedies under Title 42 U.S.C.§§ 1983, 1985, 1986; Title 28 U.S.C. §§ 2201 and 2202; actions arising directly under the Constitution, for which the federal court had jurisdiction under Title 28 U.S.C. § 1343 and under a Bivens action; under 42 U.S.C. §§ 1961 and 1962; and under whistleblower case law and statutes, relating to government misconduct in a continuing air disaster scandal.
Appellant's complaint alleged, and stated facts sufficient to meet federal pleading requirements, that state judges (a) were acting in bad faith, and that appellant could not obtain relief in state courts; (b) that the state judges acted without personal and without subject matter jurisdiction and were causing great and irreparable harm and terminal destruction of rights and privileges protected under the laws and Constitution of the United States; (c) that the state judges violated over 20 California statutes, over ten California rules of court, over five doctrines of law, California Supreme Court decisions, California Constitutional protections; (d) that the state judges violated superseding federal question rights, including Fourteenth Amendment due process and equal protection rights; property rights privacy rights; liberty rights; the Privileges and Immunities Clause; the right to unabridged interstate travel; retroactively rescinding the right to adjudicate personal and property rights in 1966 in a bilateral consent divorce proceeding, by refusing to recognize the exercise of jurisdiction on the basis of residence.
The California cause of action had been held unconstitutional by the U.S. Supreme Court for the past half century. The cause of action attacked personal and property rights adjudicated in 1966, reestablished in four subsequent divorce judgments, acquired during 22 years of divorced status, and property rights acquired during 22 years of divorced status.
The California cause of action was barred by California law; the cause of action was prohibited under the California Family Law Act; and over 20 California statutes, over ten rules of court, over five doctrines of law, California Supreme Court decisions, were repeatedly violated. Numerous federal question rights were violated.
Dozens of lis pendens were filed upon appellant's properties, on the assumption that the court had jurisdiction; that a valid marriage existed; that the separate property of a divorced person was actually community property of a married person; causing millions of dollars in property losses. These unconstitutional acts caused appellant to lose his home and his business. His sole source of income was halted since 1983. His credit was destroyed, which will continue for the remainder of his life. He was converted from a multi-millionaire to a pauper, solely on the sham cause of action held unconstitutional for the past half century, and prohibited under multiple California law.
All of these harms and wrongdoings occurred solely on the basis of the refusal to recognize the exercise of jurisdiction on residence, and demanding that the residents of jurisdictions foreign to California acquire, and prove to the satisfaction of California courts in the parties lifetime, that their subjective mental thought processes of domicile were met, to avoid being stripped of all personal and property rights acquired in the intervening, in this case, 22 years.
Although appellant was not required to exhaust state judicial remedies, he did repeatedly seek relief from the California Court of Appeals and California Supreme Court. In a published decision, the Court of Appeals suspended numerous rights and protections under federal law and Constitution, and violated a broad spectrum of protections in California statutory law.
Blocked from due process and equal protection by the multiple violations of the California Superior Court, Court of Appeals, and Supreme Court, appellant then sought relief in the same federal courts which he had earlier identified in published books and on hundreds of radio and television appearances as sequestering the exposure of the nation's worst, continuing, air disaster scandal. Although multiple federal causes of action of constitutional magnitude were alleged, and supported with sufficient specific facts to meet federal pleading requirements, every federal action was dismissed, either sua sponte, in Federal Rule 12 or Rule 56 motions. The standard tactic during the past four years reversed the common sense and U.S. Supreme Court definition of frivolous, as provided by the statutes already cited, and numerous case law.
To this date, appellant has never had his day in court, nor is there an ongoing action permitting him his day in court. Instead, there are multiple injunctive orders, all based upon the Ninth Circuit strategy of placing a frivolous label on serious federal causes of action of utmost constitutional magnitude. Using the tactics of the sham frivolous label and the injunctive orders, the Ninth Circuit judges and justices, paid and entrusted to uphold the laws and Constitution of the United States, are subverting these important rights.
The injunctive order that appellant alleged violated was rendered in a complaint (86-210) where appellant raised multiple federal causes of action arising from the sham California action. At no time did the district judge address any of the issues. Judge Schwartz repeated the judicial tactic of placing a frivolous label on every complaint filed by appellant, including the allegations of hard-core criminal misconduct related to a series of fatal air tragedies in which indescribable horror and death occurred. Having "established" that the complaint was frivolous, Judge Schwartz (and every other federal judge) then rendered summary judgment for the parties committing the multiple violations.
Appellant appealed that summary judgment and the injunctive order. The onslaught of civil and constitutional violations increased in frequency and severity after receiving Judge Schwartz's implied approval, and following the injunctive order barring appellant from seeking relief from the violations of protected rights. In desperation, appellant filed two actions raising federal causes of action addressing the violations directly affecting appellant. In the other action, appellant addressed the air safety felonies and related cover-up that were continuing to result in air tragedies.
The Justice Department, and the federal judiciary, both of whom were identified in the complaints and charged with misconduct related to the tragedies and violations inflicted upon appellant, then charged appellant with civil contempt for exercising these remedies. In tactics commensurate with the judicial due process gridlock, the civil contempt was changed to criminal contempt. The Justice Department charged in an information that appellant had committed a crime for filing the actions addressing the air disaster misconduct. While the Justice Department, part-time magistrate John Moulds, and district judge Ramirez, subjected appellant to this trauma, Judge Schwartz, who rendered the injunctive order, held that the trial courts lacked jurisdiction to hold appellant in contempt, on the basis of the appeal.
Appellant's legal counsel (who later sabotaged appellant's defenses) stipulated to waiver of district court trial, on condition that it be a jury trial. This waiver was typed into a written stipulation that was in the possession of the Justice Department, shown to appellant, and then later when appellant wanted a copy of it, the Justice Department falsely stated it did not exist.
Appellant was denied a jury trial, and forced to appear before a part time magistrate whose employment and retention relied upon the same Justice Department and federal judges and justices that were threatened with a national scandal if appellant was not silenced. All defenses raised by appellant were ignored, and he was held guilty of a crime for filing the two actions under the laws and Constitution. Magistrate Moulds refused to render a statement of decision, and denied the mandatory bail pending appeal that is required by Ninth Circuit case law.
Appellant was then abandoned by his legal counsel, who had already sabotaged appellant's defenses in the state court in the sham California action that appellant has since associated with the government scheme to silence his exposure actions by stripping appellant of his assets.
Based upon magistrate Moulds holding that appellant was guilty of criminal contempt, Las Vegas bankruptcy judge Robert Jones, without a hearing at which appellant could defend, blatantly violating constitutional due process right to be heard, and violating the statutory requirement of a noticed hearing, for legally recognized cause, for evidence, seized appellant's multi-million dollar estate in the chapter 11 bankruptcy proceedings filed to obtain relief from the civil and constitutional violations arising in the sham California action.
Appellant requested appointment of legal counsel following the corrupt seizure of appellant's funds. Counsel Carl Larson of the federal public defender's office was appointed. He promptly acted to protect his employer, the Justice Department, and the federal judges, refusing to obtain the transcripts or the record, refusing to raise any of the many defenses, refusing to ask for bail pending appeal, and instead, advised appellant to prepare for federal prison. Appellant discharged counsel for sabotaging the defenses, and requested appointment of other legal counsel to file the appeal before the United States District Court. Judge Ramirez refused to appoint other counsel, holding that the conduct of appointed counsel met the Ninth Circuit standards. Appellant thus filed his own appeal, and filed motion to disqualify Judge Ramirez on the basis of his history of due earlier process violations in action 84-0048, and on the basis that appellant had filed a federal suit against Ramirez on the basis of civil and constitutional violations. In disregard of title 28 U.S.C.'' 144 and 455, judge Ramirez held he wasn't biased and prejudiced, and refused to disqualify himself.
Judge Ramirez refused to grant appellant mandatory bail pending appeal, and ordered appellant incarcerated in federal prison. While in prison appellant again sought bail pending appeal, which was granted by the Ninth Circuit, the first granting in fifteen years of multiple and gross violations of protected rights. Appellant again requested appointment of legal counsel, and attorney Clifford Tedmon was appointed. On the day the appeal brief was due, the transcript had not been ordered; the record had not been examined; and attorney Tedmon advised appellant that he would not file any briefs, and simply argue [the many complex issues and citations of law] during the few minutes assigned for oral argument. Appellant objected to this abandonment and malpractice, wherein attorney Tedmon advised the court there were major conflicts and thus sought to be relieved of the attorney appointment.
Judge Ramirez again held that it was appellant's fault for interfering with the defense by legal counsel, and refused to appoint counsel. Appellant then requested appointment of other counsel, and the Ninth Circuit appointed counsel Brian DeAmicis.
This counsel refusal to meet with appellant to discover the extent of the many defenses. Appellant provided counsel with a draft of this brief for guidance, and advised counsel that under no circumstances was counsel to submit any briefs without appellant being given an opportunity to check it for accuracy of facts, and to insure that further legal sabotage would not continue.
Counsel submitted his appeal brief without any coordination with appellant, and omitted the major defenses that would reflect unfavorably upon the Justice Department and the federal courts. Arguments were raised that were totally inadequate for the severity of the violations of protected rights.
Appellant discharged legal counsel by papers filed on April 4, 1989, concurrent with the filing of this opening brief. Appellant also requested appointment of other legal counsel, and further, disqualification of all justices in the Ninth Circuit, based upon the history of gross and crass due process violations, the incrimination of the Ninth Circuit judges and justices in the air disaster scandal with international implications, and the Ninth Circuit misconduct.
I. The Court Lacked Jurisdiction, As a Matter of Law, To Initiate Contempt Proceedings, as the Injunctive Order Was on Appeal, and any Contempt Holding Would Be a Nullity Under Law
After Judge Schwartz rendered the summary judgment and injunctive order, appellant filed a timely appeal, which is being briefed at this time. (CA No. 86-2698) The filing of that appeal deprived the trial court of jurisdiction over any matter related to the appeal. Even Judge Schwartz, who rendered the injunctive order, admitted during a November 13, 1987 hearing, and in the subsequent written order filed November 25, 1987, that he lacked jurisdiction to hold appellant in contempt:
"[this court] lacks jurisdiction to entertain the motion [for contempt] since the underlying judgment in this case rendered by this Court is currently on Appeal. The Ninth Circuit follows the general rule with some exceptions not relevant here, that the filing of a proper and timely Notice of Appeal divests the District Court of jurisdiction over those matters that are on appeal or subject to the appeal. Donovan v. Mesola, 761 F.2d 1411, Ninth Circuit, 1985."
It is the rule in the Ninth Circuit that the filing of a proper and timely Notice of Appeal divests the court of jurisdiction over those matters that are on appeal or subject to the appeal. Donovan v. Masola, 761 F.2d 1411, 1414, 1415 (9th Cir. 1985) Matter of Thorp, 655 F.2d 997, 999 (9th Cir. 1981). The Donovan court held:
The Ninth Circuit follows the general rule, with some exceptions, that the filing of a notice of appeal divests the district court of jurisdiction over the matters appealed. See, e.g., Miranda v. Southern Pacific Transportation Company, 710 F.2d 516, 519 (9th Cir. 1983); Davis v. United States, 667 F.2d 822, 824 (9th Cir. 1982). This rule has been recently applied to contempt orders. Shuffler v. Heritage Bank, 720 F.2d 1141, 1145 n. 1 (9th Cir. 1983) (order quantifying sanction is void for lack of jurisdiction during pendency of appeal); Matter of Thorp, 655 F.2d 997, 999 (9th Cir. 1981) (criminal contempt finding void because mandate from appellate decision on civil contempt on same issue had not yet issued).
In Matter of Thorp, 655 F.2d 997 (9th Cir. 1981), the Ninth Circuit dismissed criminal contempt on the holding that "When a proper notice of appeal has been timely filed, the general rule is that jurisdiction over any matter involved in the appeal is immediately transferred from the district court to the court of appeal. (Id. at 998.) The Thorp court held:
"it is not significant that ... Thorp was convicted of criminal contempt and in Flores he was held in civil contempt. The controversy in each instance was the same ... By refusing to answer the question and subjecting himself to a civil contempt order, Thorp had followed the proper route for obtaining appellate review of the issue. ... And he was entitled to pursue his appellate remedies before being subjected to questioning on the same matter. ... Therefore, the district court was without authority to proceed at trial with respect to the matters giving rise to the adjudication of contempt on the part of Thorp, which was still on appeal, and we deem the trial court's actions in relation to the question of Thorp's being in contempt to be a nullity." Id. at 999.
Therefore, the district court was without authority to proceed at trial with respect to the matters giving rise to the adjudication of contempt on the part of Thorp, which was still on appeal, and we deem the trial court's actions in relation to the question of Thorp's being in contempt to be a nullity. ... The failure of the district court to allow the appellate process to run its course left Thorp with no alternative but to refuse to answer if he wished to preserve the issue for appellate review.
Rule 12(b)(2) of criminal procedure provides that the jurisdictional defenses "shall be noticed by the court at any time during the pendency of the proceedings." It was held in United States v. Smith, Nos. 87-3020, 87-3025 (9th Cir. Jan. 23, 1989), that "these are the most durable defenses, and may be raised for the first time on appeal.
On the basis of absence of jurisdiction to prosecute for alleged contempt when there exists an appeal, the order of contempt must be vacated.
II. A Party Cannot Be Held In Contempt If Compliance With the Injunctive Order Caused Waiver Of a Right
A party cannot be charged with contempt if compliance with the order caused forfeiture of a right and privilege under the laws and Constitution of the United States. Appellant had a right to make a record, and protect constitutional and federal question rights, especially where these rights address losses of valuable protected rights, and address air safety felonies continuing to cause and permit fatal air tragedies to occur.
Title 18 U.S.C.S. Section 401 provides that a good faith, reasonable belief that it was necessary to continue allegedly contemptuous behavior in order to make a record for appeal, or to avoid being charged with waiver of a right, is a defense to criminal contempt. Supporting case law provides that a party cannot be punished for criminal contempt when he exercises rights that would otherwise be lost. These rights include the filing of actions addressing the air disaster misconduct and the cover-up of such misconduct. The rights that would be lost would be the lives of those who perish in such disasters.
III The Denial Of Due Process Injunction Was Beyond the Judge's Jurisdiction.
A. Violates Rights and Protections Under the First Amendment
The First Amendment to the United States Constitution guarantees to all citizens the right to petition government for redress of grievances, and states:
Congress shall make no law ... prohibiting the free exercise thereof; or abridging the freedom of speech, ... or the right of the people ... to petition the Government for a redress of grievances.
Appellant was suffering terminal destruction of protected rights. Unsuspecting persons in the aviation environment, no match for those committing the air safety felonies and those obstructing justice, were suffering threats of injury, and actual injuries and deaths, from the wrongful acts alleged in the complaint dismissed by Judge Schwartz, and articulated in the two actions that served as the basis for this contempt.
B. Violates Rights and Protections Under the Fifth Amendment
The Fifth Amendment to the United States Constitution states:
No person shall be ... deprived of life, liberty, or property, without due process of law;
The injunctive order stripped appellant of due process of law, when he was barred from seeking relief from serious and multiple federal causes of action of constitutional magnitude, that were inflicting terminal destruction of liberty, freedom, privacy, property, and other interests.
The injunctive order had been preceded, and followed, by multiple violations of federally protected rights, causing great and irreparable harm. The injunctive order, forever barring appellant access to the federal courts, and relief under the Fifth Amendment, constitutional, and other federal rights, deprived appellant the same rights and privileges and immunities enjoyed by others. The injunctive order deprived appellant of a federal forum to address the multiple federal question rights in the original complaint, and compounds the same denial in the two subsequent complaints by sentencing appellant to prison for seeking relief.
The injunctive order deprived appellant of life, liberty, property, without due process of law. The injunctive order prevented appellant from addressing each and every one of these violated rights occurring in the prior actions, denying to appellant constitutionally protected rights to relief from the multiple violations occurring in the California courts. Appellant stated multiple violations of these protected rights in the complaint dismissed by judge Schwartz, and in the two complaints serving as the basis for the criminal contempt alleged major violations constitutionally protected rights.
C. Violates Rights and Protections Arising Under the Fourteenth Amendment.
Section one states:
No States 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; nor deny to any person within its jurisdiction the equal protection of the laws.
Appellant was suffering great and irreparable harm as the California judges rendered orders without jurisdiction, violating a broad spectrum of California statutory law, rules of court, California Supreme Court decisions, federal statutory and case law and holdings of the U.S. Supreme Court, and rights arising under the U.S. Constitution. The only source of relief is in federal court when a state judge violates federally protected rights and the relief in state law is not available in practice.
D. Violates Rights and Protections Arising Under the Federal Supremacy Clause
Appellant suffered great and irreparable harm from violations of rights protected by the superseding Federal Supremacy Clause. The injunctive order approved of these violations of federally protected rights, and deprived appellant access to a federal forum that has the duty to provide relief. The injunctive order violates rights and protections arising under federal law. under the Civil Rights Act, under the RICO Act, under declaratory judgment Act, under the United States Constitution, and arising under federal case law, including the U.S. Supreme Court.
E. The Injunctive Order Violates Rights and Protections Arising Under the Declaratory Judgment Statutes
The injunctive order deprives appellant of rights and privileges arising under the declaratory judgment statute, as appellant seeks determination of federal question rights arising under the U.S. Constitution, under decisions of the U.S. Supreme Court, under federal statutory law, that are openly violated by California judges.
These causes of action included (a) violation of constitutionally protected right to unabridged interstate travel; refusal to recognize prior divorce judgments, including a 1966 judgment in which jurisdiction was exercised on the basis of five month's residence, and the confirmation of that 1966 judgment as a California judgment, which in turn was entered in courts of Nevada, Texas and Oklahoma for recognition as local judgment; and seizing personal and property rights acquired during 22 years of divorced status.
F. Violates Rights and Protections Arising Under the Civil Rights Act
Appellant alleged multiple violations of the Civil Rights Act (42 U.S.C.'' 1983, 1985, 1986), invoking mandatory federal court jurisdiction. Plaintiff alleged in the action, wrongfully dismissed by Judge Milton Schwartz, that the defendants acted under color of state law, causing great and irreparable harm, while (a) lacking personal jurisdiction; or (b) lacking subject matter jurisdiction; or (c) violating clear and settled state law; or (d) or violating federal question rights; or (e) while acting in bad faith; or (f) while unable to obtain rights under law or constitution. Support for the injunctive order was sought by the tactic of placing a "frivolous" label on causes of action that do not meet the criteria established by the U.S. Supreme Court, and which suspended the rights and protections of law and Constitution.
G. Violates Rights and Protections Arising Under the RICO Act
Appellant alleged violations of the RICO Act in the action dismissed by Judge Schwartz, and in the two subsequent actions which are used for the contempt basis. The RICO Act provides rights and protections to a party who suffers harm from two or more corrupt acts, perpetrated by two or more persons acting in conspiracy.
H. Violates Rights Arising Under Federal Rules of Court
The injunctive order, and as applied, deprived appellant of the protection of Federal Rules of Court, including Rules 1 through 10 for filing actions; Rule 38 for jury trials; Rule 65 for injunctions seeking relief from harm; Federal Rules of Appellate procedure, including rules 8 and 21 for injunctions.
I. Deprived Appellant Federal Court Access and the Only Source of Relief Available To Address the Serious Violations of Constitutionally protected rights, While Simultaneously Protecting Those Committing the Violations of These Same Rights
The injunctive orders cut off the only source of relief under the laws and constitution of the United States, while simultaneously protecting those committing the violations, violating right to court access. This is not a lawful function of a federal judge.
The injunctive order limited appellant's relief from the multiple constitutional and federal violations to the California judges who repeatedly and knowingly violated the federal question rights, and who repeatedly violated California law, and engaged in a pattern corrupting the judicial process. The state judges (a) lacked jurisdiction under law to address the violations and corrections of federally protected rights; (b) they repeatedly refused to correct their misconduct; and (c) the state appellate and supreme courts aided and abetted the violations.
J. Violates Rights and Protections Arising Directly Under the U.S. Constitution and Under Biven's Claims
The multiple federal causes of action stated claims arising directly under the Constitution of the United States, raising federal court mandatory jurisdiction under Title 28 U.S.C.' 1443 and under a Biven's claim. The asserted constitutional bases included due process and equal protection, right to unabridged interstate travel, privacy, liberty, and other interests.
K. Unconstitutionally Shifted Petitioner's Sole Source of Relief From Federal Courts to Those State Agents Committing the Violations
Appellant's complaint before judge Schwartz, from which the injunctive order sought support, stated facts meeting federal pleadings requirements, showing that the state judges and non-judicial defendants repeatedly violated federal question rights. The "unflagging obligation" to exercise jurisdiction was openly violated by Judge Schwartz. See Miofsky v. Superior Court of the State of California, 703 F.2d 332 (9th Cir. 1983)("This obligation is particularly weighty when those seeking a hearing in federal court are asserting ... their right to relief under 42 U.S.C.' 1983." 609 F.2d at 1292.); Tovar v. Billmeyer, 609 F.2d 1291, 1293 (9th Cir. 1980)(quoting Colorado River Water Conservation District v. United States, 424 U.S. 800, 817-18 (1976));.
The U.S. Supreme Court held in Barnes v. McDowell, as cited in England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411 (1964) that "a federal court plaintiff... was not bound to forego his choice of a federal forum and could, by notifying the parties and the state court that he was reserving his federal issues, limit the state court's determination to the state issues, even though the state court might otherwise have had concurrent jurisdiction over the federal issues."
Title 28 U.S.C. Section 1331. Federal Question
The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, ... of the United States.
The injunctive order rendered by Judge Schwartz depriving appellant Fifth Amendment and other rights and privileges exceeded his authority.
42 U.S.C.S. Section 1983:
Civil Action For Deprivation of Rights
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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, privileged, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law [in federal courts], suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. (R.S. Section 1979; December 29, 1979, P.O. 96-170. Section 1, 93 Stat. 284.)
The Supreme Court held in Mitchum v. Foster (1972) 407 U.S. 225, that the purpose of§ 1983 was to interpose the federal courts between the States and the people, as guardians of the people's federal rights--to protect the people from unconstitutional actions under color of state law, "whether that action be executive, legislative, or judicial."
Rarely has this need been as obvious as in the underlying California action. Appellant has been deprived of every single relevant substantive and procedural due process protection, numbering in the dozens, for the past six years, solely on a cause of action that has been held unconstitutional by the U.S. Supreme Court for the past half century.
' 1983 is an Act of Congress that falls within the "expressly authorized" exception of [the anti-injunction statute]. [Id. at 242-43.
The Mitchum Court continued:
... this Court long ago recognized that federal injunctive relief against a state court proceeding can in some circumstances be essential to prevent great, immediate, and irreparable loss of a person's constitutional rights. ... For these reasons we conclude that ...
Federal Relief Cannot Be Denied Unconstitutional Acts by State Judges
Where civil right actions involve claims and issues previously litigated in the state courts, and the full faith and credit statute (28 U.S.C.§ 1738) becomes involved, it has been held that foreclosure of all subsequent relitigation in the federal courts would be inconsistent with the distrust of state courts that led Congress to grant jurisdiction to the federal courts to decide section 1983 actions. See, e.g., Lombard v. Board of Educ., 502 F.2d 631 (2d Cir. 1974), cert denied, 420 U.S. 976 (1975).
Appellant's Civil Right Act complaint--dismissed by Judge Schwartz--alleged multiple violations of important state, federal and constitutional law, any one of which invoked mandatory federal court jurisdiction. In Miofsky v. Superior Court, 703 F.2d 332, a case involving lewd conduct by a physician, the court held that federal courts had jurisdiction under the Civil Rights Act when a state court judge violated rights protected by the Constitution. In Miofsky the party had been subjected to discovery proceedings in state tort litigation purportedly violating rights protected by the United States Constitution.
In Dykes v. Hoseman, 743 F.2d 1488 (11th Cir. 1984) the court held that a state court judge acting without jurisdiction, as appellant alleged, not only invoked federal court jurisdiction, but was liable for damages. The court stated in Sherman v. Yakahi, 549 F.2d 1287 (9th Cir. 1977), that a civil right action cannot be dismissed unless "it appears beyond doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson 355 U.S. at 45-46, 78 S.Ct. at 102. At 183, the Conley court held that the availability of a state remedy was irrelevant:
It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.
In McNeese v. Board of Education (1963) 373 U.S. 668, the Court stated that "When federal rights are subject to such tenuous protection, prior resort to a state proceeding is not necessary."
The injunctive order, contrary to these rights, voided federal court remedies for which federal judges are paid to uphold, and limited appellant's non-existing rights to the repeated violations by state judges acting without jurisdiction.
The injunctive order had an illegal, unconstitutional, and corrupt goal: (1) protect those committing the air disaster felonies; (2) protect those covering up for the tragedy related misconduct; (3) protect the engineered California action intended to halt appellant's exposure of the air disaster, government and judicial scandal; (4) install a judicial due process gridlock preventing appellant from reporting, exposing, and seeking relief from any aspect of these wrongful acts.
L. The Injunctive Order Violated Responsibilities To Report Government and Judicial Corruption, and Was Clearly Intended To Protect Such Corruption
One who has knowledge of a crime, and certainly one that has national and international implications, and is continuing to cause and permit air tragedies, and who sequesters it, is guilty of a crime. The injunctive order prevented appellant from reporting the air safety felonies, and forces him to be an accessory to the crimes that bring about indescribable horror and sufferings. The punishment of imprisonment for reporting the felonies in the District of Columbia action (86-2523), makes crystal clear the intent of the injunctive order. Just as the Ninth Circuit covered up for the earlier air safety felonies, it now intended for appellant to do the same, despite the over 1000 known deaths directly related to the cover-up between the filing of the 1974 action and the injunctive order barring appellant from reporting the misconduct.
Appellant has no intention of sacrificing these and other lives, to protect the judicial cover-up misconduct, and the underlying air safety felonies.
M. The Whistleblower Statutes Encourage and Protects Parties Who Report Government Misconduct, Which Is At the Heart Of the Judicial Attacks Upon Appellant
The first amendment protects those who express public dissent. Decisional law protecting whistle-blowers have made reference to first amendment protections, prohibiting obstructing to the filing of federal actions reporting the alleged misconduct. Whistleblowing is essentially the exercise of a first amendment free speech right. A whistleblower victimized by retaliation or any other form of discrimination, has a potential Civil Rights Section 1983 action. Even if there is no state action, whistleblower retaliation which concerns a private conspiracy to retaliate may have a valid cause of action. Under the state common law public policy exception, even in the absence of state action the exercise of free speech rights might also be protected.
Congressional concern to protect whistleblowers is well known, and has been reflected by passage of title 31 U.S.C. 3734, providing for federal district court remedies. So important is the public policy right to report misconduct, that rather then limiting causes of action to public policy exception, the whistleblower statutes extends the traditional causes of action to include intentional infliction of emotional distress, fraud, invasion of privacy, defamation.
The Federal Aviation Act provides criminal penalties for those who fail to report matters affecting the nation's air safety. Appellant sought to make such reports, invoking protections under the Civil Right Act, the RICO Act, declaratory judgment statute, and under constitutionally provided rights (28 U.S.C.' 1331).
N. The Nature of the Injunctive Order Exceeded the Jurisdiction Of Any Federal Judge
There is no known statute, case law, constitutional provision, that authorizes a federal judge, paid to uphold these rights, to suspend the rights and privileges of the laws and constitution of the United States. This protection is especially appropriate where the party whose rights are being judicially suspended seeks to expose a government and judicial scandal of national magnitude.
Judge Schwartz made no reference to any authority, anywhere, that permits the suspension of the laws and constitution of the United States by any judge. The court finding appellant in contempt for exercising these rights made no reference to any authority, conveniently refusing to render findings of fact and conclusions of law.
O. The Intent Of Injunctive Orders Is To Protect A Party From Irreparable Harm When There Are No Other Remedies, and Not To Bar A Party Suffering Such Harm From Obtaining Relief
To qualify for a preliminary injunction, it must be shown that "(a) irreparable harm will occur and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary injunctive relief." Jackson Dairy v. Hood, 596 F.2d 70, 72 (2d Cir. 1979).
Reversing the Irreparable Harm Requirement
Just as the Ninth Circuit has reversed the legal definition of the frivolous doctrine to suspend appellant's due process and equal protection, it has also reversed the requirements for rendering an injunctive order. Instead of rendering an injunctive order to protect the party suffering great and irreparable harm, the Ninth Circuit rendered to order barring the party suffering the harm from seeking relief.
Injunctive relief may not be granted in the absence of proof of any threatened or probable act which might cause irreparable injury. Public Service Com. v. Wycoff Co. 344 US 237, 73 S Ct 236, 97 L Ed 291. The basis for injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies. Beacon Theatres, Inc. v. Westover, 359 US 500, 79 S Ct 948, 3 L Ed 2d 988; The basis of injunctive relief in the federal courts is irreparable harm and inadequacy of legal remedies. Sampson v. Murray, 415 US 61, 94 S Ct 937, 39 L Ed 2d 166; the equitable injunction remedy is unavailable absent a show of substantial and immediate irreparable injury. Los Angeles v. Lyons 103 S Ct 1660, 74 L Ed d2d 675; an order denying a person equal protection of the law cannot support contempt.
The Roso-Lino Beverage Distributors, Inc., v. Coca-Cola Bottling Company of New York, Inc., 749 F.2d 124 (2nd Cir. 1984) court held:
In our circuit a preliminary injunction will be issued when there is a showing of "(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Jackson Dairy, Inc. v. H.P. Hood & Sons, 596 F.2d 70, 72 (2d Cir. 1979).
The requirement and standard for an injunction was defined inStanley-fizer Assoc. v. Sport-Billy P.R.D., 608 F.Supp. 1033 (D.C.N.Y. 1985):
The standard for obtain a preliminary injunction is well settled in this Circuit. A plaintiff must establish 1) possible irreparable injury and 2) either a) a likelihood of success on the merits or b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the plaintiff's favor. Le Sportsac Inc. v. K Mart Corp., 754 F.2d 71 (2d Cir. 1985); Arthur Guinness & Sons, PLC v. Sterling Publishing Co., 732 F.2d 1095 (2d Cir. 1984).
Appellant was losing his business, his home, his assets, his income, by the litany of violations of rights and protections under the laws and constitution of the United States, constituting great and irreparable harm. But instead of rendering an injunctive order to protect appellant, the injunctive order was rendered barring appellant from access to federal remedies, and protecting those committing the violations.
Statutory Authority Trampled
The statutory authority for injunctive orders is the All Writs Act, 28 U.S.C.A.'' 1651 (aid in its legal exercise of jurisdiction). The injunctive order is intended to aid the legal exercise of authority, and protect an innocent party who may otherwise be harmed.
The criteria for rendering injunctive orders also includes the need to protect the public. But the injunctive order, suspending rights and privileges under the laws and constitution of the United States, and also barring exposure of a major air disaster scandal, harms the public, and again, reversing the clear intent of the law. If appellant's allegations are true relevant to the air safety felonies and misconduct, the injunctive order obstructed appellant's reporting of the air disaster misconduct, obstructed appellant's exposure and corrective actions, and made possible many of the deaths that occurred after the obstructionist activities by Ninth Circuit judges.
The Purpose of the Injunctive Order is to Preserve the Status Quo
The purpose of injunctive orders is to preserve the status quo while the litigation is ongoing. Again, as in the frivolous label, this criteria was reversed by judge Schwartz. The status quo requirement is not maintained, when the injunctive order bars appellant from obtaining relief from the ongoing infliction of great and irreparable harm in the continued civil and constitutional violations, while simultaneously allowing and encouraging the violators to continued their wrongful acts. Not is the criteria met when appellant's right to judicial litigation/remedies is halted, and there are no ongoing litigation anywhere to address these wrongs. (See e.g., National Ass'n of Letter Carriers v. Sombrotto, 449 F.2d 915 (2d Cir. 1971); Parker v. Winnipiseogee Lake Cotton & Woolen Co. 2 Black 545, 17 L Ed 333; Erhardt v. Boaro, 113 US 537, 5 S Ct 565, 28 L Ed 1116.
IV. A Void Order Cannot Support A Criminal Contempt Charge
The injunctive order must be an order that does not exceed the court's jurisdiction, and does not violate rights and protections under the laws and Constitution of the United States. An attempt to enforce a void order by criminal contempt is illegal and void. Re Burrus, 136 US 586, 10 S Ct 850, 34 L Ed 500. If the command is in whole or in part beyond the power of the court, the writ, or so much as is in excess of jurisdiction, is void. Surely a pro se litigant does not have to remind the Ninth Circuit of its multitude of holdings, nor its absence of authority to suspend the laws and Constitution of the United States. The court cannot punish for any contempt of its unauthorized requirements. Re Rowland, 104 US 604, 26 L Ed 861; the Court has no power to punish for contempt the violation of an injunction which it had no jurisdiction to grant. Worden v. Searls, 121 US 14, 7 S Ct 814, 30 L Ed 853; orders enjoining a party from suing are void. Re Ayers, 123 US 443, 8 S Ct 104, 31 L Ed 216.
A. The Dismissal of the Underlying Complaint Violated Due Process
In addition to the injunctive order itself being illegal, the dismissal of the underlying complaint in which the injunctive order sought support also violated rights and protections in the laws and Constitution of the United States, including due process and equal protection.
Complaints filed under the Civil Right Act require considerations over and above those found in other cases. The only basis upon which appellant's complaint could be dismissed would be if the allegations, which must be accepted as true, did not state a federal cause of action of constitutional magnitude. Appellant alleged multiple federal causes of action. He alleged that orders were rendered under color of state law, causing great and irreparable harm, in which state judges acted without personal and without subject matter jurisdiction, and violated numerous California statutes, Rules of Court, doctrines of law, and Supreme Court decisions, were violated; that the state judges were acting without personal and without subject matter jurisdiction. Appellant alleged that federal statutory and decisional law were violated; that constitutional rights were repeatedly violated. Facts were given, which combined with judicial notice proved appellant's allegations, a proof that was not needed to prohibit dismissal.
Decisional law prohibited the dismissal of causes of action that appellant alleged, with sufficient specifics to meet federal pleading requirements.
Every complaint filed by appellant or his attorney stated serious federal causes of action of constitutional magnitude. Even Judge Schwartz admitted during the first hearing on May 9, 1986 that appellant's complaint raised very serious causes of action.
A Void Judgment Can Be Disregarded
A void judgment is not entitled to the respect accorded a valid adjudication. All proceedings founded on the void judgment are themselves regarded as invalid. A void judgment is regarded as a nullity, and the situation is the same as it would be if there were no judgment. 30A Am Jur Judgments'' 43, 44, 45.
It is attended by none of the consequences of a valid adjudication. It has no legal or binding force or efficacy for any purpose or at any place. ... It is not entitled to enforcement ... All proceedings founded on the void judgment are themselves regarded as invalid. 30A Am Jur Judgments'' 44, 45.
In Jordon v. Gilligan, 500 F.2d 701, 710 (6th Cir. 1974) the court held: "a void judgment is no judgment at all and is without legal effect. Lubben v. Selective Service System Local Bd. No. 27, 453 F.2d 645 (1st Cir. 1972). A party cannot be precluded from raising the issue of voidness in a direct or collateral attack because of the failure to object prior to, or at the time of, entry of the judgment. ... a court must vacate any judgment entered in excess of its jurisdiction.
In U.S. v. Holtzman, 762 F.2d 720 (9th Cir. 1985), the court held:
Portion of judgment directing defendant not to import vehicles without first obtaining approval ... was not appropriately limited in duration and, thus, district court abused its discretion by not vacating it as being prospectively inequitable." Id at 722.
The Supreme Court held in Johnson v. Virginia, 373 U.S. 61 (1963), violation of due protection of the laws required reversal of contempt order.
An order that exceeds the judge's jurisdiction is a void order, or voidable, and can be either ignored, or attacked in any proceeding in any court where the validity of the judgment comes into issue. (See Rose v. Himely (1808) 4 Cranch 241, 2 L ed 608; Pennoyer v. Neff (1877) 95 US 714, 24 L ed 565; Thompson v. Whitman (1873) 18 Wall 457, 21 l ED 897; Windsor v. McVeigh (1876) 93 US 274, 23 L ed 914; McDonald v. Mabee (1917) 243 US 90, 37 S ct 343, 61 L ed 608. The district court had no authority to suspend for a whistleblower seeking to report threats to our national aviation security, and which were repeatedly causing and permitting air tragedies to occur.
Orders Exceeding the Court's Jurisdiction, or Suspending Civil and Constitutional Rights, Are Void Orders
In U.S. v. Holtzman, 762 F.2d 720 (9th Cir. 1985), the court continued:
It has been held that the mere fact that the court has jurisdiction of the subject matter of an action does not justify an exercise of a power not authorized by law, or a grant of relief to one of the parties the law declares shall not be granted ... Although every exercise of power not possessed by a court will not necessarily render its action a nullity, it is clear that every final act, in the form of a judgment or decree, granting relief the law declares shall not be granted, is void, even when collaterally called in question.
The case of Ritchie v. Seyers, cited in Michel v. Williams (Id. at 200), stated that a judgment exceeding the court's jurisdiction, violating the law, was not a valid judgment:
... the question is, did it have jurisdiction to enter the particular decree and judgment that it did enter? As we have seen, we reach the conclusion that the particular judgment could be entered, and it is a well settled principle that, although a court may have jurisdiction of a case, yet, if it appears from the record that it did not have jurisdiction to enter the particular decree and judgment, it may be collaterally attacked."
A key question that should be easily answered, despite the conduct of the Ninth Circuit judges and justices, is whether a federal judge of the Ninth Circuit can turn on end the rights and protections in the laws and constitution of the United States. Appellant argues that he/she has no such authority.
In Bache v. Wallace, 102 Minn. 169 [112 N.W. 366], the court said: "Proceedings [or orders] outside the authority of the court, or in violation or contravention of statutory prohibitions, whether the court has jurisdiction of the parties and subject matter of the action or proceedings, or not, are utterly void. (In re Rimmons, 62 Ala 416, 417; In re Gibson, 31 Cal.619 [91 Am. Dee. 546]; Bartow v. Saunders, 16 Or. 51 [8 Ass. St. Rep. 261].
The injunctive order suspending for the air disaster and judicial whistleblower, the rights and protections of the United States, is beyond judge Schwartz's jurisdiction. It was also beyond his jurisdiction to place a frivolous label upon hard-core civil and constitutional violations that did not meet the definition of the term.
A judge acts without jurisdiction if he violates clearly and settled statutory or case law. In Rankin v. Howard, 633 F.2d 844, 849 (9th Cir. 1980) the Ninth Circuit held:
... when a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes or case law expressly depriving him of jurisdiction, judicial immunity is lost. Bradley v. Fisher, 80 U.S. (13 Wall.) at 351. ("when the want of jurisdiction is known to the judge, no excuse is permissible"); Turner v. Raynes, 611 F.2d 92, 95 (5th Cir. 1980) (Stump is consistent with the view that "a clearly inordinate exercise of unconferred jurisdiction by a judge--one so crass as to establish that he embarked on it either knowingly or recklessly--subjects him to personal liability").
If a command, writ, or any order is beyond the power of the court, or in excess of jurisdiction, the order is void. A federal judge has no authority to punish for any contempt of its unauthorized requirements. Ex parte Rowland (1882) 104 U.S. 604, 26 L.Ed. 861. The injunctive order illegally deprived appellants of rights and protections under federal law and constitutional protections.
"A judgment which is void upon its face, and which requires only an inspection of the judgment roll to demonstrate its wants of vitality is a dead limb upon the judicial tree, which should be lopped off, if the power to do so exists." People v. Greene, 71 Cal. 100 [16 Pac. 197, 5 Am. St. Rep. 448]. "If a court grants relief, which under the circumstances it hasn't any authority to grant, its judgment is to that extent void." (1 Freeman on Judgments, 120-c.)
The Injunctive Order Deprived Appellant the Due Process Right To Seek Relief For Himself, and the Air Disaster Victims
The repeated reversal of the frivolous doctrine, the repeated improper dismissals of suits seeking relief that stated multiple federal causes of action of constitutional magnitude, and the repeated rendering of injunctive orders suspending the laws and Constitution of the United States, deprived appellant of due process right to seek relief for himself, and those victimized in the air disaster and superimposed government and judicial scandal.
The injunctive order required appellant to either comply with the order and be a party to one of the worst forms of death yet created, or, file an appeal to the Ninth Circuit, and continue the exercise of federal remedies to halt the terminal destruction of protected rights suffered by appellant, and address the causes of death for many innocent persons.
When appellant exercised his moral and legal responsibilities under the laws and Constitution of the United States, those in control of the Justice Department, and judges and justices of the Ninth Circuit, openly inflicted punishment upon appellant for not sequestering the air safety felonies that brought horror and death to so many.
Federal judges of the Ninth Circuit have established their contempt for human life by declaring frivolous the federal actions addressing air safety felonies uncovered during official duties. In an earlier mandamus action against the National Transportation Safety Board, the truth of appellant's allegations was implied by Justices Browning, Sneed, and Schroeder. The decision dismissing the appeal stated that "Stich's concern, the risk of future airline crashes, is real enough." Further supporting the truth of appellant's allegations for procedural purposes are the requirements to recognize as true the allegations in the complaint, under Federal Rule of Civil Procedure 12 and related case law.
V. Grounds For Criminal Contempt Musts Be Proven Beyond A Reasonable Doubt Standard
For purpose of criminal contempt under 18 U.S.C. Section 401, guilt must be proven "beyond a reasonable doubt." Any single one of the many defenses raised by appellant prohibits reaching that requirement.
There are four requirements that must exist before a party can be held in contempt. Except for knowledge of the injunctive order, the other requirements did not exist.
1. A valid, lawful, order. There is no authority anywhere permitting a federal judge to suspend the rights and the protections under the laws and Constitution of the United States for any individual. The reverse was the intent of the founders of the Constitution, and the Congress of the United States. The Ninth Circuit has made it standard practice to repeatedly violate rights and protections to obstruct appellant's exposure of the tragedy-riddled air disaster scandal, upon which has been superimposed a major federal judicial scandal that makes the Chicago Cook County judicial scandal pale by comparison. The criminal contempt charge, and imprisonment of a dedicated air safety activities--to silence him--has suspended the laws and Constitution, corrupting the judicial process, and continues to sacrifice lives in the process. At no time have the federal courts addressed the highly questionable legality of the injunctive order, or the bases upon which the injunctive order seeks support (frivolous label applied to the federal causes of action in the underlying complaint).
2. Willfully violating a legal order. This requirement, including the legality of the order, must be proven beyond any doubt. In Falstaff Brewing Corporation v. Miller Brewing Company, 702 F.2d 770 (9th Cir. 1983), the court held that "in criminal contempt the proof of contempt must be beyond a reasonable doubt." The law upon which appellant relies makes it obvious he did not feel he was violating a legal order; that the injunctive order was illegal and beyond the jurisdiction of Judge Schwartz; and that appellant had the right to seek relief that he sought. (See also United States v. Greyhound Corporation, 508 F.2d 529 (1974)).
3. Proof of ability to comply. The injunctive order, as applied, obviously intended for appellant to permanently sequester evidence of a crime that is continuing to cause death to innocent persons. The deaths are occurring, as appellant has witnessed for the past three decades, from deeply ingrained misconduct that has created an international air disaster scandal that must be protected at any cost, including subversion of the federal judiciary.
The injunctive order directly, and indirectly, sought to bar appellant from addressing this misconduct, which is obviously, the intent, of every illegal and unconstitutional act and injury inflicted upon appellant. The seizure of appellant's assets were intended to destroy the source of funding for these exposure activities. The seizure of appellant's protected liberties, privacy, freedoms, were intended to divert his attention from the exposure activities. In bankruptcy court, the injunctive order was (a) to protect the illegal and corrupt seizure of appellant's properties; (b) to protect those attorneys, trustee, and others, who aided in the seizure of the properties; and compound the earlier violations.
There has been no attempt to determine the legality of forcing a party to abandon constitutional remedies addressing the terminal destruction of his own protected rights, or to force appellant to be a silent witness to the deaths of innocent persons arising from the original air safety felonies, or the cover-up by the Justice Department and federal judges. Can any federal judge inflict upon any citizen, the requirement to participate in a crime of this nature, and be a silent co-conspirator to the deaths of innocents persons, such as little children who are no match for the cover-up parties who must seek support in a group creating a judicial due process gridlock!
High Degree Of Proof Absolutely Lacking
The high degree of proof required to find a party guilty of contempt, under these conditions, simply does not exist. In Falstaff Brewing Corp. v. Miller Brewing Co, 702 F.2d 770 (1983), footnote 1, making reference to United States v. Powers, 629 F.2d 619 (9th Cir. 1980) articulated the degree of proof required to support a contempt finding: "Standards of proof ... in civil, the contempt must be proven by clear and convincing evidence; in criminal, the proof of contempt must be beyond a reasonable doubt. Id. at n.6. We also noted that Fed.R.Crim.P.42(b) may require a trial by jury."
VI. The Injunctive Order Was Unclear and Ambiguous
An injunctive orders must be clear and not ambiguous, if it is to support a criminal contempt label. But an order (that is on appeal) requiring a party to waive rights and protections in the laws and Constitution of the United States, to silently observe the literal total loss of protected rights, that requires appellant to remain silent in an ongoing crime that causes horror before definition to hundreds of innocent persons, while the laws and Constitution state otherwise, is not a clear order.
The injunctive order, as applied after the fact by the Justice Department, magistrate Moulds, and district judge Raul Ramirez, clearly was intended to silence the reporting of the air disaster misconduct, and the extension of that misconduct to silence appellant via the sham California action. But if that was the intent--to commit the crime of cover-up--the injunctive order should have plainly stated that intent, rather than leave it to appellant to determine whether the laws and Constitution applies, or instead, the corrupt, illegal, and unconstitutional injunctive order of Judge Schwartz.
What does appellant do? Does he become a willing participant to the ongoing conspiracy covering up for the air disaster misconduct, and thus become morally and legally liable for being an accessory to a crime? Is he expected to abandon his defenses, and be a silent witness to the terminal destruction of protected rights?
The July 30, 1986 injunctive order was unclear, stating in part:
IT IS HEREBY ORDERED that plaintiff, Rodney F. Stich, is barred from filing any action or actions in any United States District Court, or in any state court, until his current state court action, Solano County Superior Court No. 83472, becomes final and he has exhausted all his state court appellate remedies... after the judgment in that state court action has become final and all appellate processes have been exhausted, this bar to further actions shall still apply to any and all claims precluded by the doctrines of res judicata and/or collateral estoppel.
The order was riddled with conflicts:
A. The order required abandoning rights to relief from the terminal destruction of important protected rights, and sit idly by as these rights are permanently lost, including the lives of persons far more important to this country that a corrupt federal judge.
B. Appellant was ordered to adjudicate his federal causes of action before state judges, who (aa) lacked jurisdiction to adjudicate the federal causes of action raised in appellant's complaint that Judge Schwartz concurrently dismissed. These causes of action included:'' 2201, 2202.
1. Violations of federal question rights being violated by the state judges and rendering of declaratory judgments under 28 U.S.C.
2. Violations of constitutional right to unabridged interstate travel, without suffering a taking of personal and property rights. Millions of divorced persons are threatened with the California actions, if they should exercise the same travel rights and change their residence to California.
3. Violation of right to exercise divorce court jurisdiction on the basis of residence, denied to appellant by going back 22 years and refusing to accept the adjudication by a foreign court in a divorce action to residents of such foreign jurisdictions.
4. Due process and equal protection rights.
C. Relief under the Civil Rights Act from the multiple causes of action raised by appellant's complaint. The same state judges violating these rights lack jurisdiction to adjudicate the violations that federal statutory and case law holds are the responsibilities of federal judges. What does appellant do, other than comply with statutory and case law, recognizing rights under the constitution.
D. Relief directly under the Constitution, in a Bivens action.
E. Relief under the RICO Act from the multiple corrupt acts and conspiracies arising out of the scheme to silence appellant's reporting of the air disaster and superimposed Justice Department and judicial scandal. The state judges that cooperated in the conspiracy lack jurisdiction to adjudicate the RICO Act complaint, and by their own involvement, would be barred from deciding their own guilt.
The question then arises, how are the rights and protections arising under the laws and constitution of the United States, exercised? The injunctive order did not address these rights, leaving appellant with no alternative but to exercise the same due process and lawful rights available to others.
VII. The Injunctive Order Sought Support For Its Legitimacy in Major Violations Of Constitutional and Federal Law
The injunctive order sought support by simultaneous reversal of the frivolous doctrine, and violation of numerous substantive and procedural due process rights that requires the district courts to accept the jurisdiction and provide relief.
The injunctive order sought support by reversing the Supreme Court's definition of the frivolous doctrine. The trial court--and it has become the standard tactic in the Ninth Circuit's suspension of all due process and equal protection rights--placed a frivolous label on the complaint that stated multiple, major, federal causes of action of constitutional magnitude. Having "established" the complaints seeking relief as frivolous, the Ninth Circuit's tactic then dismissed the action.
Legal Definition of Frivolous Was Reversed
The United States Supreme Court defined the legal definition of frivolous in Anders v. California (1967) 386 U.S. 738:
An appeal [or complaint] is not frivolous if "any of the legal points [are] arguable on their merits ..."
Appellant raised multiple federal causes of action, any one of which invoked mandatory federal court jurisdiction, prohibiting the placement of a frivolous label upon the complaint. The complaints also stated wrongful acts that have and are continuing to play a causative and permissive role in a series of fatal air tragedies. For the Ninth Circuit courts to call these issues frivolous reveals the arrogance and danger that the Ninth Circuit poses to the interests of the United States, and to specific individuals who have, and will continue to perish, made possible by the series of obstructive actions by the Ninth Circuit, commencing with the 1974 FAA action.
The injunctive order sought support in Judge Schwartz's summary judgment dismissal of appellant's action. Federal Rule of Court 56 and related case law bars summary judgment for defendant when there are controverted issues of fact, of which there were many.
These controverted issues of fact included (a) did the defendants act without jurisdiction; (b) did they violated state law; (c) did they violate federally protected rights; (d) were their actions corrupt actions; (e) did they act in a conspiracy; (f) were constitutionally protected rights violated, including unabridged interstate travel, the right to obtain a divorce, whether residence is in fact not a legal basis for exercising jurisdiction. The summary judgment deprived appellant of constitutional due process, equal protection of the law, the right to a jury trial. The summary judgment violated Rules of Court and case law prohibiting a dismissal. The summary judgment violated rights and protections arising under the declaratory judgment statute, under the Civil Rights Act, under the RICO Act. The violations were part of a judicial scheme against appellant, and against exposure of the air disaster felons.
The multiple federal causes of actions alleged in the complaint prevented summary judgment for the defendants. In the early Monroe v. Pape (1961) 365 U.S. 167 decision, the Court held that infringement of a federal constitutional right was actionable under 42 United States Code Section 1983 if the infringement was also independently violative of state law. Appellant's allegations claimed numerous federal constitutional right violations.
The Monroe Court concluded that section 1983 had three principal aims: (a) to override certain kinds of state laws; (b) to provide a remedy where state law was inadequate; (c) and to "provide a federal remedy where the state remedy, though adequate in theory, was not available in practice." (Id. at 174) It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies." [Id. at 180.]
There is a well-established body of case law which says that summary judgment--complete or partial--is an extreme and drastic remedy which must be granted only sparingly. (United States v. Diebold, 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Poller v. Columbia Broadcasting System, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Inland Oil & Transport Co. v. U.S.., 600 F.2d 725 (8th Cir.), cert denied, 444 U.S. 991 (1970); United States v. Bosurgi, 530 F.2d 1105 (2d Cir. 1976); Zweig v. Hearst Corp., 521 F.2d 1129 (9th Cir.), cert. denied, 423 U.S. 1025 (1975); Giordano v. Lee, 434 F.2d 1227 (8th Cir. 1970), cert denied, 403 U.S. 931 (1971); see also 6 Moore's Federal Practice&& 56.15, 56.16.) The numerous controverted issues of fact--and federal causes of action, prohibited summary judgment dismissal. This protection is increased when a jury has been demanded, as it violates the party's right to a trial on the merits.
The requirement that there be "no genuine issue of material fact" requires that the court cannot try the case on a summary judgment motion. National Assn. of Gov't Employees v. Campbell, 593 F.2d 1023, 1027-29 (D.C. Cir. 1978). See also 6 Moore's Federal Practice& 56.15[1.--0], . The court cannot consider and weigh conflicts in the evidence during summary judgment motions. Egger v. Phillips, 669 F.2d 497, 502 (7th Cir. 1982), cert. denied, 104 S.Ct. 284 (1983); Rodway v. U.S. Dept. of Agriculture, 482 F.2d 722, 727 (D.C. Cir. 1972). The court cannot subject even undisputed evidence to interpretation, unless it is only subject to one possible interpretation; it cannot weigh conflicting inferences or interpretations which can be put on the evidence. U.S. v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Southway Theatres, Inc. v. Georgia Theatre Co., 672 F.2d 485, 495 (5th Cir. 1982); Sankovick v. Life In. Co. of North America, 638 F.2d 136, 140 (9th Cir. 1981); Robertson v. Seidman & Seidman, 609 F.2d 583, 591 (2d Cir. 1979); Winters v. Highlands Inc. Co., 569 F.2d 297, 299 (5th Cir. 1978).
Summary judgment can only be granted in three circumstances: (1) Where the only issues in the case are legal issues; (2) Where the opponent concedes all relevant facts, making the only issues in the case legal issues; or (3) Where there has been a well-planned and executed discovery effort which has succeeded in tying down the opponent, by its own admissions, so that there is a set of facts which cannot be disputed and which will thus support summary judgment. None of these requirements existed.
VIII. Procedural Protections Were Violated
A. The Justice Department Withheld Evidence.
The prosecutor has a duty to preserve evidence. During the December 4, 1987 sentencing hearing before magistrate Moulds, assistant U.S. Attorney Flynn produced for examination by appellant and his attorney a typed copy of the waiver of trial before a district court, which showed affirmatively the stipulation was based upon a jury trial. Appellant filed a motion with the court, refused by Judge Ramirez during court proceedings, that this copy be produced. Assistant U.S. Attorney Flynn fraudulently denied the existence of the document that he himself displayed to appellant at the December 4th hearing before magistrate John Moulds.
The importance of the document is that it would conclusively show, more than the handwritten waiver and stipulation, that the U.S. Attorney recognized the stipulation and waiving a district court trial was based upon a jury trial, irregardless of any other jury requirement, and could not be denied by reduction in the requested length of sentence.
Appellant's attorney failed to obtain the depositions of Judge Schwartz's law clerk, Jo Ann Spears, whose telephone conversation to appellant two days before the calendared hearing on the order to show cause, caused appellant not to personally appear, but to appear by legal counsel. When appellant complied with this request, Judge Schwartz, who was reported to have approved the non-personal appearance, then changed the civil contempt to criminal contempt. It could be expected, when the overall issues are examined in light of appellant's identification of the Justice Department and federal judges in a major air disaster cover-up, that appellant was deliberately set up. And if so, the prosecution was a misuse of government facilities to accomplish a criminal act. The Justice Department surely acted in unison with Judge Schwartz and his law clerk to effect this scheme by misuse of the awesome government powers.
This defense brings into question the institution of the prosecution. (See e.g., United States v. Jarrett, 705 F.2d 198, 205 (7th Cir. 1983), cert denied, 465 U.S. 1004 (1984) quoted in United States v. Dion, ;762 F.2d 674, 680 (8th Cir. 1985), rev'd in part, 106 S.Ct. 2216 (19867). Rule 12(b)(1) motions are designed principally as vehicles to challenge the decision to prosecute and prosecutorial irregularity in obtaining the indictment.
"It is well-settled that the Government has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment." Pennsylvania v. Ritchie ____U.S. _____ (1987) For Brady violations during the guilt phase of a trial, Brady v. Maryland, 373 U.S. 83 (1963), materiality turns on whether there is a reasonable probability that the evidence might have affected the outcome of the trial, such that, "had the evidence been disclosed to the defense, the result of the proceeding would have been different." Ritchie, supra, at ____; see also United States v. Bagley, 473 U.S. 667, 674-678 (1985).
IX. Appellant Was Denied the Constitutional Right To A Jury Trial, and Then Prosecuted and Tried By Those Threatened by Appellant's Exposure Activities
It is preposterous that in these United States a citizen may be prosecuted and tried by those allegedly committing national crimes, and whose interests in incarcerating the party prevents any possibility of an unbiased tribunal, and absolutely prevents a trial on the merits.
The Sixth Amendment to the U.S. Constitution provides for a fair and impartial trial. Article III, section 2, requires a jury trial. But this constitutional protection is impossible when the judges and prosecutor are the same parties identified by appellant in the world's worst air disaster scandal, and one of the nation's worst Justice Department and judicial scandals.
The Justice Department knew of the criminal misconduct that had played a causative and permissive role in some of the nation's most brutal air tragedies, when appellant made formal complaints to the Department in 1965, and thereafter. The cover-up up by the Department of Justice, protecting the felons, made possible the many resulting tragedies that followed. From that point on, appellant was forever barred from obtaining a fair and impartial trial from the Justice Department.
When the federal courts obstructed justice following appellant's filing of the actions against the FAA and NTSB, making possible the many deaths that followed the cover-up, appellant was forever deprived of a fair and impartial trial before those federal judges, or the federal judges whose interests in protecting their colleagues transcended concern for justice, or concern for those who would continue to perish.
The Justice Department, and federal judges and justices of the Ninth Circuit, again knew of the continuing air tragedy felonies when appellant filed two federal actions in the Ninth Circuit courts. In those two complaints raising multiple federal causes of action under, inter alia, Title 28 U.S.C.' 1361 (mandamus), the Justice Department and the federal judges and justices saw the tragic air disaster results of the earlier air safety felonies, made possible by the earlier cover-up. Despite the horror and death innocents would suffer from continued cover-up, the cover-up continued, as did the related air tragedies. The scheme to silence appellant commenced with the sham California cause of action that had been held unconstitutional by the U.S. Supreme Court for the past half century, and which violated over two dozen California statutes, rules of court, doctrines of law, and dozens of controlling California Supreme Court decisions. The cover-up was necessary to sequester the world's worst air disaster scandal with international ramifications, and to cover up for the criminal misuse of the powerful Department of Justice and federal courts. Any reasonable person would reach the conclusion, and this has been conveyed to appellant by numerous attorneys, that a fair trial would be impossible.
To now subject appellant to a trial before these same parties, focusing on the grave misconduct that they themselves perpetrated, would be the height of constitutional absurdity.
Right To A Fair and Impartial Trial
The Constitution provides for a jury trial. Article III, section 2, of the United States Constitution states that "The trial of all Crimes, except in Cases of Impeachment, shall be by jury ..." The United States Supreme Court articulated the right to a jury in Duncan v. Louisiana (1968) 391 U.S. 145, 148-149:
The right to a trial by jury has been determined to be "among those fundamental principles of liberty and justice which lie at the base of all our civil liberties and political institutions; it is the basis in our system of jurisprudence ... [and] is a fundamental right, essential to a fair trial."
That fundamental right appears to be another one of the many reverse applications of the laws and Constitution by Ninth Circuit judges. In addition, the jury trial was stipulated during the hearing before magistrate Hix, in conjunction with appellant attorney's waiver of a trial before a district judge, was also violated. Thereafter, the jury trial was denied, on a totally separate argument; the holding that six month's imprisonment is a petty offense for which the constitutional right to a jury trial can be denied. But that issue had nothing whatsoever to do with the stipulated waiver of a district court trial.
Impossibility of Fair and Impartial Trial Without A Jury Is Indicated By the History Of Judicial Misconduct
Any reasonable person, and many attorneys have admitted to appellant, that he cannot possibly obtain a fair and impartial trial, or justice, based upon the multiple violations already committed. For example:
A. Illegal dismissal of the two mandamus actions against the FAA and NTSB, resulting and permitting heavy loss of life to occur, which protecting the air safety felons and felonies.
B. Illegal dismissal of every complaint stating multiple federal causes of action, compounding the dismissal by punishing appellant with over $150,000 financial sanctions, payable to those committing the violations.
C. The litany of rights and protections violated in the federal actions, commencing with the suits against the Federal Aviation Administration and National Transportation Safety Board, the action before Judge Ramirez in 1984 (84-0048), and subsequent actions.
D. The repeated and obviously conspired sham reversal of the frivolous label, using that tactic to dismiss federal of action.
E. The protection by the Ninth Circuit courts of the multitude of violations committed in the California action, and the mislabeling of the action as a divorce action when the causes of action do not meet the criteria of such an action.
F. The irrefutable inference, indicating the sham California action to have been engineered or carried out by federal judges of the Ninth Circuit, to halt appellant's exposure activities that threatened to expose the part played by the Justice Department and federal judges in air tragedies following the cover-up.
No Known Comparable Case In Federal Law
There is no known comparable case in federal law, where a party is sentenced to prison for reporting criminal misconduct related to a series of airline disasters. The national implications, the international ramifications of the misconduct, the severity of the consequences, the involvement of the Justice Department and the federal courts in the alleged misconduct, makes it absolutely necessary to have a jury trial to achieve even the most rudimentary constitutional requirements of a fair and impartial trial. Even this would be almost impossible to attain under the existing corruption that taints the proceedings.
The Ninth Circuit held in United States V. Hamden, 552 F.2d 276 (9th Cir. 1977) that "An offense may be serious enough to require a jury trial because of the severity of the penalty, aside from the inherent nature of the crime. Id. at 69 n. 6, 90 S.Ct 1886." The Hamden court cited Muniz v. Hoffman, 422 U.S. 454, quoting: "A six month sentence 'is a serious matter for any individual, ..." (Id. 281)
The Hamden court stated:
If the "seriousness of the risk and the extent of the deprivation" were to be evaluated on the basis of the circumstances of each case, the ability of the particular defendant to pay a particular fine would have to be determined in advance of the trial.
Serious Nature Of the Consequences Of Incarceration
The Ninth Circuit judiciary seized appellant's multi-million dollar estate without the constitutional right to defend, and violating Congressional protections for a noticed hearing, legally recognized cause, supporting evidence, solely on the decision by the part-time magistrate that appellant's filing of the two actions constituted criminal acts. The Ninth Circuit justices, and even the U.S. Supreme Court justices, apparently agree as their dangerous interpretation of the laws and Constitution supports that perverted holding.
Obviously, as the Hamden court held, the "seriousness of the risk and the extent of the possible deprivation" to the individual must be considered, in determining whether a jury trial is required. In footnote 2, the Hamden court held that "Protection of property interests occupies an important place in the constitutional scheme; and deprivation of property can have a serious impact on an individual." Incarceration of any period of time will have severe impact upon debtor. The federal conspiracy seized appellant's multi-million dollar estate based upon the criminal contempt charge. The need for a jury trial also arises from the basis by which appellant raised a disqualification of Judge Ramirez under Title 28 U.S.C.'' 144 and 455.
Even the Appearance Of Justice Must Be Preserved
After this onslaught of outrageous violations of rights and protections under the laws and Constitution of the United States, it is somewhat preposterous to raise the "appearance" of justice. Due process "guarantees" a party the right to an impartial forum, which has been statutorily addressed by Congress in title 28 U.S.C.'' 144 and 455, and the Fifth and Fourteenth Amendments. The due process requirement of even an absence of appearance of impartiality was addressed in State of Idaho v. Freeman, 507 F.Supp. 706 (D.Idaho, 1981). Id. at 713,717, 721. "Any conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge's 'impartiality might reasonably be questioned' is a basis for the judge's disqualification."
Appellant filed a motion disqualifying Judge Raul Ramirez from hearing the appeal on the basis of obviously bias. It was judge Ramirez who dismissed appellant's first attempts to obtain relief from major federal causes of action, a suit filed by attorney James Reed who taught civil and constitutional law. Judge Ramirez commenced the sham "frivolous label" tactic, reversing the Supreme Court's definition of the term, so as to deny to any party the rights and protections under the laws and Constitution of the United States, setting the stage for a discretionary destruction of any targeted person, such as appellant, the air disaster, government, and judicial misconduct whistleblower.
Appellant had earlier filed a Civil Right and Bivens action against Judge Ramirez, alleging to specific violations of civil and constitutional rights. The judge protect judge syndrome in the Ninth Circuit protected him from the law. With this history, judge Ramirez refused to disqualify himself when appellant filed a disqualification.
Appellant was therefore forced to protect himself under the following conditions:
1. Private attorney sabotaging appellant's defenses, which have been described in earlier filings.
2. Justice Department acting as prosecutor, and federal judges of the Ninth Circuit, acting as trier of facts, both of whom were threatened with grave repercussions if appellant's exposure activities circumvented the numerous blocks to a public disclosure.
3. A part time magistrate whose appointment, and continued retention, depended upon placating the same judges and Justice Department intent on destroying appellant's ability to expose the scandal.
4. Judge Ramirez's bias, and refusal to disqualify himself.
The Nature Of the Case Determines the Right To A Jury Trial
It is appellant's position that the federal courts of the Ninth Circuit, and the U.S. Supreme Court, covered up for air disaster misconduct that had, and would continue, to result in indescribable horror and deaths. Following this cover-up, there were repeated air tragedies that were caused or permitted to occur by the nature of the misconduct. Immediately after appellant sought federal relief which never came, 346 persons perished in a DC-10 cargo door scandal riddled with misconduct as discovered by appellant while a government air safety investigator. Under these conditions, it is preposterous to deprive appellant of a jury trial. While case law stresses the importance of the appearance of due process, the violations of due process in this action and related actions is so egregious that it sounds naive to raise the point.
The constitutional right to a jury trial is to protect an accused from the awesome power of corrupt government (Baldwin v. New York, 399 U.S. 66, 72 (197); United States v. Hamdan, 552 F.2d 276 (9th Cir. 1977)), and the most outstanding example of this is in the present action. The Justice Department, and the federal judges and justices, acting as trier of facts, both of whom have been identified by appellant with participation in the sordid scandal sacrificing children and others who are no match for this awesome misuse of government power.
X. Appellant Was Denied Legal Counsel
In preparing the appeal to the district court, appellant was denied legal counsel, and had to file pro se briefs. The gravity of the misconduct and the involvement of the Justice Department and federal courts has caused every legal counsel to sabotage appellant's defenses, showing the awesome power, and danger, of the federal judiciary, to citizens of the United States. Other attorneys have admitted to appellant that this power is so awesome, that if they were to represent appellant, and raised the necessary issues, that their legal practice would forever be adversely affected by the federal and state courts.
Appellant had witnessed this power when appellant engaged legal counsel in the sixties to address the Justice Department cover-up of the tragedy riddled scandal, and was unsure whether it was a local aberration, or of national dimensions. It is now obvious, to be national in scope, showing the ease with which this country by be overthrown by silencing dissent via the federal judiciary. Arguing law in the face of these massive numbers of judicial violations is of course an exercise in futility. However, for the record, the law is cited.
In Ridgeway v. Baker, 720 F.2d 1409 (5th Cir. 1983) the court reversed and remanded the imprisonment of a party who was not represented by legal counsel, despite his request for counsel. In footnote 2, p. 1411, the court held that collateral consequences must be considered in contempt proceedings.
In Ridgeway the court held:
This right [to legal counsel] extends to every case in which the litigant may be deprived of his personal liberty if he loses. Lassiter v. Department of Social Services, 452 U.S. 18, 25, 101 S.Ct. 2153, 2158-59, 68 L.Ed.2d 640, 648 (1981). ... The right to counsel turns on whether deprivation of liberty may result from a proceeding, not upon its characterization as "criminal" or "civil." ... a civil contempt proceeding may pose an even greater threat to liberty than a proceeding labeled "criminal," with a correspondingly greater need for counsel. ... The Ninth Circuit Court of Appeals has recognized that due process requires the provision of counsel for the indigent in contempt cases. Henkel v. Bradshaw, 483 F.2d 1386 (9th Cir. 1973). ....
Appellant's last counsel, DeAmicis, continued the pattern. Let everyone remember, this obvious conspiracy overwhelms the little children and others, who suffer and perish in the underlying air tragedies, made possible by the judicial opportunists in this sordid saga of air disaster and judicial misconduct.
XI. Appellant Was Denied Findings Of Fact and Conclusions Of Law, Making It Impossible To Know the Lower Court's Determination Of the Multiple Defenses
Just as the frivolous label became a standard tactic in the judicial due process gridlock, so has the refusal to render mandatory statement of decisions. The California judges repeatedly refused to address the controverted matters of fact and law, and this practice was continued by the federal judges. It has even become the standard tactic by the Ninth Circuit Court of Appeals, who simply refuse to address the issues, as they approve the multiple violations and dismiss the appeals.
Federal Rule 52(a) requires the court in granting or denying a preliminary injunction, "... shall ... set forth the findings of fact and conclusions of law which constitute the grounds of its action." Judge Schwartz never addressed the controverted issues of fact and law. He never addressed the multiple issues raised in the complaint. He simply reversed the common sense and Supreme Court standard for frivolous actions, and applied it to serious federal causes of action of constitutional magnitude, perverting the laws and constitution of the United States. Magistrate Moulds refused to render a statement of decision addressing the multiple controverted facts and law. He refused to address appellant's October 27, 1987 Motion For Reconsideration Or New Trial, and December 14, 1987 motion to vacate judgment under Rule 35 entitled Motion to Correct Illegal Sentence For Filing Air Safety Action.
Appellant requested that magistrate John Moulds render findings of facts and conclusions of law in appellant's December , 1987 motion to alter or amend. This was not done. Appellant requested that district judge Raul Ramirez render findings of fact and conclusions of law in support of his decision denying the appeal from the magistrate to the district court. Judge Ramirez's version of findings did not address the numerous controverted issues of fact and law that appellant raised in his defense. Included in these defenses were the (a) improper dismissal of the underlying complaint; (b) the matter of whether the serious federal causes of action in the complaint supported the frivolous label which Judge Schwartz used to justify the injunctive order; (c) whether a federal judge can render orders abolishing the due process and equal protections under constitutional and federal remedies.
There are many obvious conclusions.
(1) Appellant had uncovered a hotbed of air safety misconduct that played a causative and permissive role in numerous air tragedies affecting persons in the United States and foreign citizens;
(2) the Department of Justice and federal judges obstructed the exposure, and correction, of the misconduct, and by their acts made possible many deaths of unsuspecting persons, including little children who were no match for the conspiracy;
(3) the California action was a judicial sham, to destroy appellant and destroy his exposure capabilities, and protected by federal judges who appear to be implicated in the scheme from the beginning;
(4) the dismissal of every suit seeking relief from the gross violations of protected rights is necessary to protected the air safety felons, the conspiracy of cover-up, and the California scheme and perpetrators;
(5) that the judicial tactic used the frivolous label to suspend the laws and Constitution and deprive appellant of the right to defend;
(6) that the injunctive order was another lawless and unconstitutional tactic to bar appellant court access to expose the air disaster misconduct and the extension of the misconduct to halt appellant's exposure activities;
(7) that the many requirement for rendering the injunctive order were reversed, as in the frivolous label application;
(8) that appellant was set up for the criminal contempt charge, to imprison and destroy appellant, possibly by bringing about his death;
(9) that the constitutional right to a jury trial under the conditions, and the stipulation, was openly violated as were the many other rights and protections;
108) that the court lacked jurisdiction to hold appellant in contempt on the basis of the appeal, the illegality of the order, and the other defenses;
(11) that the sordid history of massive due process violations by the federal judges and justices of the Ninth Circuit carried through to the contempt trial and thereafter;
(12) that magistrate Moulds had a vested interest in granting the judgment urgently needed by the Justice Department and the federal judges and was thus biased, and corrupt;
(13) that Judge Ramirez had a history of due process violations and should have disqualified himself sua sponte, and certainly after appellant filed a motion of disqualification;
(14) that the Ninth Circuit justices have established a solid history of due process violations commencing with the 1974 and 1980 actions against the FAA and NTSB--making them culpable in the subsequent air tragedy deaths, and in the repeated denial of relief on appeals, refusing to address the issues.
To reach this point, the federal judges and justices have:
1. Approved the major violations of constitutionally protected rights by the California judges, which violated rights established by the U.S. Supreme Court, violated federal supremacy clause, violated over 20 California statutes, over ten Rules of Court, California Supreme Court decisions.
2. Illegally dismissed the federal causes of action over which they had mandatory jurisdiction, placing a sham frivolous label on major federal causes of action of constitutional magnitude.
3. Illegally protected the violators and the multiple violations of federal question rights, and ordered appellant to pay over $150,000 to the violators for exercising remedies specifically provided by federal law.
4. Wrongfully schemed to harm and assist others to harm appellant, causing appellant to seek relief in chapter 11 bankruptcy.
5. Wrongfully extended the judicial misconduct, and illegally seized appellant's multi-million dollar estate, without the case being on the calendar, without the statutory requirement of a noticed hearing, legally recognized cause, evidence, and other requirements.
6. Wrongfully rendered illegal orders barring appellant from filing appeals of the seizure of the valuable estate.
7. Wrongfully sentenced appellant to prison when appellant filed oppositions and appeals to the seizure of his properties.
8. Wrongfully sentenced appellant to prison when appellant filed federal actions exposing the ongoing air disaster scandal, depriving him constitutional requirement of a jury trial, denied him mandatory bail pending appeal, denied him legal counsel.
9. Wrongfully dismissed the earlier mandamus actions against the FAA and NTSB, and made possible over a thousand deaths in air tragedies directly related to the air safety felonies protected by the federal courts.
It is clear that:
1. The underlying Civil Right Action was improperly dismissed, and the frivolous definition applied in reverse. Important constitutional and federal rights were openly violated by its dismissal.
2. The injunctive order, as written, was not violated. The injunctive order, as written, deprived Appellant of important constitutional and federal rights.
3. The injunctive order, as retroactively expanded and applied, had one obvious purpose: Sequester evidence of a major airline crash scandal and cause Appellant to commit the crime of cover-up. Illegal orders are outside the jurisdiction of a federal judge.
4. Jury trial was illegally and unconstitutionally denied. Appellant was forced to appear before his air safety adversaries. Jury trial agreed during arraignment, and attached to Waiver form. Also required to obtain fair and impartial trial, as provided by constitution and decisional law.
5. Evidence did not provide degree of proof required for criminal contempt.
The contempt order should either be dismissed, or a trial granted in which Appellant is protected by a jury against the bias, prejudice and vested interest existing in a trial conducted and decided by adversaries.
Dated: April 1, 1989.
RODNEY F. STICH
Appellant in pro se
I, RODNEY F. STICH, declare that the statements made in this motion are true to the best of my knowledge and belief.
Executed on this 1st day of April, 1989, in the town of Alamo, State of California.
RODNEY F. STICH
Note: The Ninth Circuit Court of Appeals denied Stich's appeal, thereby protecting the obstruction of justice by federal judges, the judicial retaliation for reporting criminal acts in government and retaliation for exercising due process rights guaranteed by the laws and Constitution of the United States, and many other offenses. Their approval of these criminal acts, of the misuse of the federal courts as a corrupt arm of government, had grave implications for the American people.
Stich then filed for the entire Ninth Circuit Court of Appeals to review these issues en banc, and they also refused to perform their duty, giving tacit approval to what had been perpetrated in the federal courts.
Making matters even worse, the Supreme Court justices became implicated. Stich filed a petition for writ of certiorari with the U.S. Supreme Court, and the Justices of the Supreme Court, who have supervisory responsibilities over the lower federal judges, and also a responsibility under federal crime reporting statutes to received the reports of criminal activities. Their refusal to act made them accomplices!
Among the corrupt activities that Stich was trying to report--and for which he was charged with criminal contempt of court and sent to prison--were the same corrupt activities that enabled four groups of hijackers to seize four airliners on September 11, 2001. Obviously, if the federal judges had received Stich's reports, instead of criminally blocking the reports, and criminally retaliating against him, 3,000 people would probably be alive instead of victims of one of the most horrible disasters in the nation's history.
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