From: DDAweb
Date: Tue, 12 Jan 2010 04:40:34 -0600
To:
Subject: FC
City of West St. Paul, Plaintiff, Notice of and Removal of Dakota County District Court Criminal Case on Grounds of Judicial Prejudice and Violations of
14th Amendment Due Process Rights.
Dakota County Citation no. 3-441797
Dakota County Court file: 19WS-CR-09-15734
TO: Dakota County District Court, Attorney for the City of West St. Paul
The undersigned removed this to US District Court BY VIRTUE OF 28 U.S.C. 1443;
28USC1443 - Google Search
"Any of the following ... criminal prosecutions, commenced in a State court
may be removed by the defendant to the district court of the United States
for the district and division embracing the place wherein it is pending:
such State a right under any law providing for the equal civil rights of
citizens of the United States, or of all persons within the jurisdiction
thereof[.]
on the following grounds:
specificity of a criminal accusation, see. e.g. United States v. Cruikshank, 92 U.S. 542 (1876), US v Cruikshank,92US - Google Search quoted and affirmed in Russell v. United States, 369 U.S. 749 at 763-765, Russell v. US 39 US 749 - Google Search which in turn is cited with approval in State v. Gross, 387 N.W. 2d 182 at 189 (Minn. App. 1986) . Gross,387 NW 2d 182 Minn App.1986 - Google Search
PDF]
State of Minnesota District Court County of Dakota First Judicial ...
Oct 25, 2009 ... Gross, 387 N.W. 2d 182 at 189. (Minn. App. 1986). That the right to a specific accusation including separate counts for distinct ...
www.angelfire.com/mn3/advocate6/2009dog/motionvacatereverse.pdf
That the right to a specific accusation including separate counts for
distinct offenses charged has been incorporated by the fourteenth amendment to the United States Constitution. See: e.g. Cole v. Arkansas, 333 U.S. 196 at 201 (1942), Cole v. Arkansas,333 US 196 - Google Search and Faretta v. California, 442 U.S. 806 at 818(1975). Faretta v. California - Google Search
The plaintiffs have tried to allege that a police officer, allegedly hear a barking dog noise at my property, from a distance of over 200 feet, when scientific evidence clearly shows it would be impossible to identify such a sound, or even hear it, from such a distance, because sound diminished by about 75% at a distance of 200 feet or sixty meters, SEE SOUND CALCULATOR:
http://www.sengpielaudio.com/calculator-distance.htm.
The failure to withdraw the criminal complaint, AND INSTEAD RELENTLESSLY PURSUE MALICIOUS PROSECUTION, shows the plaintiffs are relying on a failure of due process and fairness in the Dakota County Courts and there is obvioulsy the potential for progressively more insane criminal accusations to transpire in future because of this case.
2) The plaintiff have done this as part of a pattern of misconduct which has occurred over a period of more than fifteen years.
3) The defendant cannot get a fair trial in Dakota County, as detailed in the select Dakota county court documents attached hereto, as there has been a hostile history with the Dakota County.
Federal law requires the automatic disqualification of a Federal judge under certain circumstances.
In 1994, the U.S. Supreme Court held that "Disqualification is required if an objective observer would entertain reasonable questions about the judge's impartiality. If a judge's attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified." [Emphasis added]. Liteky v. U.S., 114 S.Ct. 1147, 1162 (1994).
Liteky v US 114 S.Ct.1147,1162 (1994) - Google Search
www.clr.org/Judicial-disqualification.html - Cached - Similar
Courts have repeatedly held that positive proof of the partiality of a judge is not a requirement, only the appearance of partiality. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988) Liljeberg v. Health Services Acquisition Corp 486 US847 - Google Search(what matters is not the reality of bias or prejudice but its appearance); United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985) Liljeberg v. Health Services Acquisition Corp 486 US847 - Google Search(Section 455(a) "is directed against the appearance of partiality, whether or not the judge is actually biased.") ("Section 455(a) of the Judicial Code, 28 U.S.C. 455(a), is not intended to protect litigants from actual bias in their judge but rather to promote public confidence in the impartiality of the judicial process.") .28USC 455 Judicial Code - Google Search
That Court also stated that Section 455(a) "requires a judge to recuse himself in any proceeding in which her impartiality might reasonably be questioned." Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989). In Pfizer Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972), the Court stated that "It is important that the litigant not only actually receive justice, but that he believes that he has received justice."
The Supreme Court has ruled and has reaffirmed the principle that "justice must satisfy the
appearance of justice", Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038 (1960), citing Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13 (1954). A judge receiving a bribe from an interested party over which he is presiding, does not give the appearance of justice.
"Recusal under Section 455 is self-executing; a party need not file affidavits in support of
recusal and the judge is obligated to recuse herself sua sponte under the stated circumstances." Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989).
Further, the judge has a legal duty to disqualify himself even if there is no motion asking for his disqualification. The Seventh Circuit Court of Appeals further stated that "We think that this language [455(a)] imposes a duty on the judge to act sua sponte, even if no motion or affidavit is filed." Balistrieri, at 1202.
Judges do not have discretion not to disqualify themselves. By law, they are bound to follow the law. Should a judge not disqualify himself as required by law, then the judge has given another example of his "appearance of partiality" which, possibly, further disqualifies the judge. Should another judge not accept the disqualification of the judge, then the second judge has evidenced an"appearance of partiality" and has possibly disqualified himself/ herself. None of the orders issued by any judge who has been disqualified by law would appear to be valid. It would appear that they are void as a matter of law, and are of no legal force or effect.
Should a judge not disqualify himself, then the judge is violation of the Due Process Clause of the U.S. Constitution. United States v. Sciuto, 521 F.2d 842, 845 (7th Cir. 1996) US v. Sciuto 521 F.2d 842 - Google Search
("The right to a tribunal free from bias or prejudice is based, not on section 144, but on the Due Process Clause.").
State and Federal Due Process - Google Search
Should a judge issue any order after he has been disqualified by law, and if the party has been denied of any of his / her property, then the judge may have been engaged in the Federal Crime of "interference with interstate commerce". The judge has acted in the judge's personal capacity and not in the judge's judicial capacity. It has been said that this judge, acting in this manner, has no more lawful authority than someone's next-door neighbor (provided that he is not a judge).
However some judges may not follow the law.
If you were a non-represented litigant, and should the court not follow the law as to
non-represented litigants, then the judge has expressed an "appearance of partiality" and, under the law, it would seem that he/she has disqualified him/herself.
However, since not all judges keep up to date in the law, and since not all judges follow the law, it is possible that a judge may not know the ruling of the U.S. Supreme Court and the other courts on this subject. Notice that it states "disqualification is required" and that a judge "must be disqualified" under certain circumstances.
The Supreme Court has also held that if a judge wars against the Constitution, or if he acts
without jurisdiction, he has engaged in treason to the Constitution. If a judge acts after he has been automatically disqualified by law, then he is acting without jurisdiction, and that suggest that he is then engaging in criminal acts of treason, and may be engaged in extortion and the interference with interstate commerce.
Courts have repeatedly ruled that judges have no immunity for their criminal acts. Since both treason and the interference with interstate commerce are criminal acts, no judge has immunity to engage in such acts.
4) The defendant¹s First Amendment rights are also being abused by this action as this action appears to be retaliation by the City of West St. Paul Attorney, for speaking out on disability issues, via a web site, relevant to Alice Krengel, as the citation was issued one week after the Minnesota Supreme Court ruled against that City Attorney, and in favor of Ms. Krengel.
RELIEF REQUESTED
1. AN INJUNCTION PROHIBITING THE CITY OF WEST ST. PAUL FROM CONTINUING THIS MALICIOUS PROSECUTION, AND CONTINUING TO SOLICIT AND ENGAGE IN DUE PROCESS VIOLATIONS IN THIS ACTION.
2. DAMAGES (INCLUSIVE BUT NOT LIMITED TO ACTUAL, PUNITIVE, AND EXEMPLARY) FOR ENGAGING IN A LONG TERM PATTERN OF HARASSMENT AGAINST THE DEFENDANT, FOR AN UNSPECIFIED AMOUNT.
January 11, 2010 Respectfully Submitted:
*
Mary Jane Duchene, BA, BS
1144 Ottawa Avenue
West St,. Paul, MN 55118
Fax: 651 457 4376
MariJaynDuchene@aol.com
http://www.angelfire.com/mn3advocate6/2009dog/wspnoise.html
