CASE LAW

Affidavits
1. Uncontested allegations of fact in affidavit must be accepted as true. Morris v. National Cash egister Co.! "" S.W.#d "$$ #. %ne person has no authorit& to ma'e an affidavit in the name of another. E( parte )ohnson! 1*" S.W.#d +*" Hubka v. Pennfield Twsp (Mich 1992) 494 N.W.2d 8 Affidavit that failed to state that Affiant was competent to testify violated court rules. MCR 2.119 !" 1" c" Winse!! v. "#nalds#n (Mich 19$%) 244 N.W.2d &'' #tatements in affidavits that are not re$utted $y opposin% party&s affidavit or pleadin%s may $e accepted as true $y the trial court.

Appeals
1. ,ro se petitioners arguments must be liberall& construed on appeal. U.S. v. Eatinger! -.# /#d 1$+$ 0-th Cir. 1--.1 #. Argument not presented in trial court cannot be raised for the first time on appeal. Man2oli v. C.3. .! -." /#d 1.1 01st Cir. 1--.1 $. 3ssue ma& be heard for first time on appeal 4hen plain error has occurred and in5ustice might other4ise result. Sn&der v. Sumner! -6. /#d 1""+ 0-th Cir. 1--#1 /or an appellate court to overturn a conviction under the 7plain error8 standard parties must meet $ re9uirements: 11 error must be plain 0i.e. so obvious that 5udge should have recogni2ed it on his o4n1; #1 error must affect substantial rights of the parties; and $1 the error must be one that seriousl& affects fairness! integrit&! or public reputation of 5udicial proceedings. U.S. v. <avis! -=" /#d 1+# 0<.C. Cir. 1--#1 ". Notice of appeal are generall& to be read liberall&. <avis v. Loc'e! -$6 /#d 1#.+ 011th Cir. 1--11 *. <efendant>s right of effective assistance of counsel applies not 5ust at trial but also on direct appeal. omero v. ?ans&! "6 /$d 1.#" 01.th Cir. 1--*1 6. ,ro se petitioners arguments must be liberall& construed on appeal. U.S. v. Eatinger! -.# /.#d 1$+$ =. Court of Appeals ma& revie4 a ruling motion for abuse of discretion. Wages v. 3. .S.! -1* /.#d 1#$. 0-th Cir. 1--.1 +. 3t ma& be appropriate for Court of Appeals to address issue raised for first time on appeal if such issue concerns pure 9uestion of la4 or if proper resolution of issue is be&ond doubt. State of ?e(as v. United States! =$. /.#d $$- 01-+"1

Attorneys
1. As an officer of the court! an attorne& is charged 4ith the advancement and protection of propert&! libert& and occasionall& life. @e'er v. ,rocunier! $-+ /.Supp. =*6 #. An attorne& has no constitutional guarant& of freedom from arrest and an& immunit& 4hich he possesses must be found in the common la4 and in the statutes supplementing it. Aumsteg v. American /ood Club! 3nc.! 1"$ N.E.#d =.1

Citizenship
1. Citi2enship in the United States is a dual relation! national and state. 3n so far as it relates to the national government! it embraces all persons 4ithin the fourteenth amendment of the federal Constitution! providing that all persons born or naturali2ed in the United States and of the state 4herein the& reside. Citi2enship of a state! ho4ever! means residence b& a citi2en of the United States in a state 4ith an intention of remaining. #. Bammerstein v. L&ne! #.. /. 16* $. ?he distinction bet4een citi2enship of the United States and citi2enship of a state is clearl& recogni2ed and established. Not onl& ma& a man be a citi2en of the United States 4ithout being a citi2en of a state! but an important element is necessar& to convert the former into the latter. Be must reside 4ithin the state to ma'e him a citi2en of it! but it is onl& necessar& that he should be born or naturali2ed in the United States to be a citi2en of the Union. 3t is 9uite clear! then! that there is a citi2enship of the United States! and a citi2enship of a state.! 4hich are distinct from each other! and 4hich depend upon different characteristics or circumstances in the individual. Slaughterhouse Cases! 16 Wall. $6! =$C="; #1 L.Ed. $-" ". Citi2enship! 4hen spo'en of in the Constitution in reference to the 5urisdiction of the courts of the United States! means nothing more than residence. ?he citi2ens of each state are entitled to all the privileges and immunities of citi2ens in the several states; but to give 5urisdiction to the courts of the United States! the suit must be bet4een citi2ens residing in different states! or bet4een a citi2en and an alien. Cooper v. Dalbraith! No. $!1-$! 6 /ed. Cas. "=$

Compelling Interest
1. A fundamental right ma& not be abridged 4ithout a compelling state interest. Curr& v. ,lanning and Aoning Commission of ?o4n of Duilford! $=6 A.#d =-! $" #. <enial of a right to privac& is not a compelling state interest. Ea'er v. Wade! **$ /.Supp. 11#1! 11"* $. ?he test of compelling state interest is 4hether agenc&>s actions are repugnant to the constitution. @ohn v. <avis! $#. /.Supp. #"6! #*.

". Compelling interest include onl& those interests pertaining to survival of republic or ph&sical safet& of its citi2en. 3n re ?essier! E'rtc&.! 1-. E. . $-6! ".* *. Although cit& had strong interest in ensuring public safet& and order! cit&>s interest in avoiding potential treat to public order 4as not 7compelling government interest8 sufficient to 5ustif& contentCbasedCin5unction against simultaneous pic'eting on street outside residence b& groups 4ith opposing vie4points. Seven Bills v. Ar&an Nations! 66= N.E.#d -"#! -"= 6. Neither privac& and reputation interest of third parties! government>s 7investigation interest!8 nor polic& interests of liberal disclosure of Erad& material 4ere 7compelling interests8 4hich overcame ne4spaper>s /irst Amendment right of access to sealed documents. U.S. v. Don2ale2! -#= /.Supp. =6+! =+$ Complaint A 7complaint8 must contain a statement of the facts sho4ing 5urisdiction of court; o4nership of a right b& plaintiff; violation of that right b& defendant; in5ur& resulting to plaintiff b& such violation; 5ustification for e9uitable relief 4here that is sought; and a demand for relief. ,ierce v. Wagner! 1$" /.#d -*+! -6.

Conspiracy
1. Each member of a conspirac& is criminall& liable for all reasonabl& foreseeable crimes committed during the course and in furtherance of the conspirac&. ,in'erton v. U.S.! $#+ U.S. 6". #. A 7civil conspirac&8 is an agreement bet4een t4o or more people to participate in an unla4ful act or a la4ful act in an unla4ful manner. Bobson v. Wilson! =$= /#d 1 0<.C. Cir. 1-+"1 $. Separate transactions are not separate conspiracies as long as activities 4ere aimed at common! illicit goal. U.S. v. ,o4ell! -+# /#d 1"## 01.th Cir. 1--#1 ". %ne does not become participant in conspirac& merel& b& associating 4ith conspirators 'no4n to be involved in crime; one must agree to participate in order to be convicted for conspirac&. U.S. v. )ones! "" /$d +6. 01.th Cir. 1--*1 *. La4 generall& re9uires ta'ing of some affirmative action in order to 4ithdra4 from a conspirac&. U.S. v. Dreenfield! "" /$d 11"1 0#nd Cir. 1--*1 Constitution 1. 3t is also not entirel& un4orth& of observation that in declaring 4hat shall be the supreme la4 of the land! the constitution itself is first mentioned; and not the la4s of the United States generall&! but those onl& 4hich shall be made in pursuance of the constitution! have that ran'. Marbur& v. Madison! 1 Cranch 1$= #. Where rights secured b& the Constitution are involved! there can be no rule ma'ing or legislation 4hich 4ould abrogate them. Miranda v. Ari2ona! $+" U.S. "$6! "-1

$. Bistor& is clear that the first ten amendments to the Constitution 4ere adopted to secure certain common la4 rights of the people! against invasion b& the /ederal Dovernment. Eell v. Bood! =1 /.Supp. +1$! +16 01-"=1 ". All la4s 4hich are repugnant to the Constitution are null and void. Marbur& v. Madison! * U.S. 0Cranch1 1$=! 1=" 01+.$1 *. /ailure to obe& the command of a police officer constitutes a traditional form of breach of the peace. %bviousl&! ho4ever! one cannot be punished for failing to obe& the command of an officer if that command is itself violative of the constitution. Wright v. Deorgia! $$= U.S. #+"! #-1

Contracts
1. %bligation of contract is la4 4hich binds parties to perform their agreement. Norfol' F Western &. Co. v. American ?rain <ispatchers Ass>n.! "-- U.S. 11= 01--11 #. No contract e(ists unless parties agree on all of its material terms and conditions and nothing is left to future agreement. Ero4ning v. ,e&ton! -1+ /#d 1*16 011th Cir. 1--.1 $. ?o have enforceable contract! parties must e(change consideration! and that ambiguit& in contract 4ill generall& be construed against part& 4ho drafted contract. @af'a v. Eellevue! --- /#d 111= 0=th Cir. 1--$1 ". Contract can be avoided if it 4as induced b& fraud! duress or misrepresentation. Doldman v. Ee9uai! 1- /$d 666 0<.C. Cir. 1--"1 *. Contractual clauses purporting to 4aive constitutional rights must be clear and unambiguous. 3n E Wor'er>s Compensation efund! "6 /$d +1$ 0+th Cir. 1--*1

Corporations
1. Corporations are creatures of state la4! and that state la4 generall& governs their affairs. E DFL ,ac'ing Co.! 3nc.! "1 E -.$ 0<.C. Ne4 Gor' 1-+"1 #. Corporation is artificial entit& that can act onl& through agents. U.S. v. ?riCNo Enterprises! +1- /#d 1*" 0=th Cir. 1-+=1 $. While a corporation can be held liable for the acts of its agents! directors or officers cannot be held individuall& liable unless the& participate in the conduct 4hich gave rise to the liabilit&. ,rince v. Aa2ove! -*- /#d 1$-* 0=th Cit. 1--#1; Diorgio Morandi 3nc. v. ?e(tport Corp.! =61 /.Supp. 1# 0S.<. Ne4 Gor' 1--11 ". Under Deorgia la4 victim of tort committed b& corporate agent ma& sue agent personall& or corporation under theor& of vicarious liabilit& or both. Helten v. egis E. Lippert! 3nteract! 3nc.! -+* /#d 1*1* 011th Cir. 1--$1 *. Notice to president of compan& is notice to compan& as matter of la4. E.E.%.C. v. DC@CD! $- /$d =". 0=th Cir. 1--"1

6. A corporation is a citi2en resident! or inhabitant of the state or countr& b& or under the la4s of 4hich it 4as created! and of that state or countr& onl&. 1C.).S.! Section ++6 =. A foreign corporation is one that derives its e(istence solel& from the la4s of another state! government or countr&; the United States government is a foreign corporation 4ith respect to a state. 1- C.). S.! Section ++6 +. ?he individual! unli'e the corporation! cannot be ta(ed for the mere privilege of e(isting. ?he corporation is an artificial entit& 4hich o4es its e(istence and charter po4er to the state! but the individual>s right to live and o4n propert& are natural rights for the en5o&ment of 4hich an e(cise cannot be imposed. edfield v. /isher! #-# %regon +1"! +1= -. ?he United States Dovernment is a foreign corporation 4ith respect to a state. NG re: Merriam $6 N.E. *.*; 1""1 S.Ct. 1-=$; "1 L.Ed. #+= 1.. Dovernments are corporations. ,enhallo4 v. <oane! $ <all ** <red Scott v. <anford! 1. Bo4 $-$ 11. Corporations are persons 4ithin the meaning of the constitutional provisions forbidding the deprivation of propert& 4ithout due process. 16" U.S. *=+; #6 U.S. *"" 1#. An act removing the liabilit& of corporations to suit on e(isting obligations is void. Nat>l. Ean' v. Sebastian Co.! * <ill "1* 1$. Ever& corporation formed for governmental purposes is a municipal corporation. Wood4ard v. Livermore /alls Water <ist.! 116 Me "-6 1". ?he ban' plaintiffs! being corporations! have no constitutional privilege against compulsor& selfCincrimination b& virtue of the /ifth Amendment. California Ean'ers Assn. H. Schult2! "16 U.S. #1 1*. /or ta(ation purposes there are fundamental distinctions bet4een individuals and corporations. @entuc'& . . ?a( Cases! 11* U.S. $#1! $$=! $$-; ,acific E(p. Co. v. Seibert! 1"# U.S. $$16. A corporation is protected under the /ifth Amendment against ta'ing of its propert& 4ithout 5ust compensation. Monongahela Nav. Co. v. U.S.! 1"+ U.S. $1#; Bale v. Ben'el! #.1 U.S. "$! =6 1=. An& privilege 4hich ma& e(empt a corporation from burdens common to individuals does not flo4 necessaril& from the charter! but must be e(pressed in it! or the& do not e(ist. Ean' v. Bamilton! #1 3ll. *$; ,eters v. ailroad Co.! #$ Mo. 1.=; ?hrope v. Eurlington! #= Ht. 1". 1+. Municipal corporations constitute a part of the civil government of the state. Ne4 %rleans Das Co. v. Louisiana Light Co.! 11* U.S. 6*.! 6=# 01++*1 1-. Corporate veil ma& be pierced onl& in cases of fraud or in5ustice. Moba& Corp. v. AlliedCSignal! 3nc.! =61 /.Supp. $"* 0<. Ne4 )erse& 1--11

#.. Corporation is artificial entit& that can onl& act through agents. U.S. v. ?riCNo Enterprises! +1- /.#d 1*" 0=th Cir. 1-+=1 #1. Since federal government ma& form corporation onl& under necessar& and proper clause of constitution! and therefore most corporations are formed b& states! the inclusion of 7corporations8 in term 7person8 and 74hoever8 under 1 USCS 1 must be interpreted to comprise state as 4ell as federall& created corporations. United States v. ,oli22i! *.. /.#d +*6 0CA- Cal. 1-="1 ##. Local governments! municipal corporations! and school boards are 7persons8 sub5ect to liabilit& under "# USCS 1-+$ for violating another person>s federall& protected rights! and thus are not 4holl& immune from suite under 1-+$. Monell v. <ept. of Social Services! "$6 U.S. 6*+ 01-=+1 #$. Corporations are not citi2ens! 4ithin the meaning of provisions of Art. 3H! #! cl 1! declaring that 7the citi2ens of each state shall be entitled to all privileges and immunities of citi2ens in the several states.8 ,aul v. Hirginia! =* U.S. 16+ 01+6-1 #". Where all named plaintiffs are corporations the& have no standing to assert a violation of privileges and immunit& clause 0US Const.! Art "! #! Cl 11. American ?ruc'ing Ass>n. v. Dra&! =.= S.W. =*- 01-+61 #*. When a corporation assumes to do that 4hich it has not been empo4ered b& the state to do! the act is a nullit&. .3. F , . Co. v. Union ,ac. &.! "= /ed. ep. 1* #6. An act removing the liabilit& of corporations to suits on e(isting obligations is void. Nat>l. Ean' v. Sebastian Co.! * <ill "1* #=. Since the state! used in the real sense of the 4ord! is an abstract entit& 4ith its individual citi2ens as its component parts! it can no more act in and of itself than can a corporation 4hich is in the same sense composed of its stoc'holders. Cit& of Eisbee v. Cochise Count&! =+ ,.#d -+#! -+6 01-$+1 #+. A suit against a municipal corporation is not a suit against 7one of the United States8 4ithin the meaning of the Eleventh Amendment! and that such a corporation is the agent of the state government is undoubtedl& true! but it does not follo4 therefrom that a suit against it or its officers is such a suit. Camden 3nterstate .Co. v. Catlettsburg! 1#- /ed. ep. "## 01-."1

Court Procedures
1. / C, contemplates liberal discover& in interest of 5ust and complete resolution of disputes. @at2 v. Eatavia Marine F Sporting Supplies! 3nc.! -+" /.#d "## 0/ed. Cir. 1--$1 #. Subpoena duces tecum must be reasonable and specific! and documents sought must be relevant. U.S. v. @alter! * /.$d 1166 0+th Cir. 1--$1 ,urpose of discover& after motion for summar& 5udgment is to test truth of allegations of the pleadings. Charash v. %berlin College! 1" /.$d #-1 06th Cir. 1--"1 /. .C.,. strongl& favor full discover& 4henever possible. /arns4orth v. ,rocter F Damble Co.! =*+ /.#d 1*"* 011th Cir. 1-+*1

$. <efendant must raise before trial b& motion an& ob5ections based on defects in indictment! and failure to raise non5urisdictional ob5ections prior to trial constitutes 4aiver of such ob5ections. /ed. ules Cr. ,roc. ule 1#0b10#1!0f1! 1+ U.S.C.A. United States v. ichards! =#$ /.#d 6"6 01-+$1 ". Without personal service in accordance 4ith rule of civil procedure! district court is 4ithout 5urisdiction to render personal 5udgment against a defendant. ule "! #+ U.S.C.A.! /ed. ules Civ. ,roc. ule re9uiring specificit&. ule +0a1 0#1! #+ U.S.CA.! /ed. ules Civ. ,roc. *. E(haustion of administrative remedies is not re9uired 4hen plaintiffs raise constitutional 9uestion and irreparable in5ur& 4ill occur 4ithout preliminar& 5udicial relief. Able v. United States! +"= /.Supp. 1.$+ 01--"1

Courts
1. Court must accept allegations in pleadings as true. Cooper v. ,ate! $=+ U.S. *"6 / C, ule 6*0b1 3n5unctions 04ill issue if1 it clearl& appears from specific facts sho4n b& affidavit or b& the verified complaint that immediate and irreparable in5ur&! loss and damage 4ill result to applicant before the adverse part& or his attorne& can be heard in opposition. #. Courts 4ill intervene to prevent an abuse of discretion. ,eople e( rel. Dhent v. Cleveland! C.C. L. . Co.! 6. N.E.#d +*1; 11. AL 11$. /ederal courts 4ill discharge their dut& to protect constitutional rights. ,rocunier v. Martine2! "16 U.S. $-6 ". )udge must be fair to all parties and ma& not do or sa& an&thing that might pre5udice either litigant. U.S. v. ,rice! 1$ /.$d =11 0$rd Cir. 1--"1 *. A court of record is a court presided over b& a man of e(perience and learned in the la4! assisted b& counsel also of e(perience and learning 4ho acts as advisers of the court. 3ts proceedings are conducted 4ith solemnit& and deliberation! and in strict conformit& 4ith established modes! and the& are ta'en do4n and made a matter of record at or about the time the& transpire. Bahn v. @ell&! $" Cal. $-1 6. We 0Court of Appeals1 ma& not disturb the 5udgment of the 0lo4er court1 unless 4e find that 5udgment to be arbitrar&! capricious! an abuse of discretion! or other4ise not in accordance 4ith la4. ,erreira v. Secretar& of <BBS! $$ /.$d 1$=* 0/ed. Cir. 1--"1 =. When a federal court revie4s sufficienc& of complaint! before reception of an& evidence either b& affidavit or admissions! issue is not 4hether plaintiff 4ill ultimatel& prevail or is li'el& to prevail but 4hether claimant is entitled to offer evidence to support claim. Scheuer v. hodes! "16 U.S. #$# 01-="1 +. When court ta'e 5udicial notice of facts! and err in their assumed facts! a 9uestion of la4 is presented. United States v. 1*.. Eales of Cotton! /ed. Cas. No. 1*! -*+

-. <istrict Court>s conclusion of la4 is sub5ect to complete and independent revie4. Dould! 3nc. v. United States! -$* /.#d 1#=1! 1#=$ 0/ed. Cir. 1--11

Debt Collection
1. ?he license authori2ing a collection agenc& to do business ma& be revo'ed for a violation of the statutes and rules regulating such agencies. Meade v. State Collection Agenc& Ed.! 1+1 Cal. App.#d =="; * Cal. ptr. "+6 01-6.1 #. A license does not constitute a 7franchise!8 and therefore 9uo 4arranto is not the proper remed& 4hen an association allegedl& has been operating a collection agenc& 4ithout a license re9uired b& statute. State e( rel. /airchild v. Wisconsin Automotive ?rade Ass>n.! #*" Wis. $-+; $= N.W.#d -+ 01-"-1 $. Iuo 4arranto is the proper procedure! ho4ever! to prevent an individual operating a collection from continuing to do acts 4hich constitute the unauthori2ed practice of la4. Eer' v. State! ##* Ala. $#"; 1"# So. +$#; +" A.L. . =". 01-$#1 ". ?he forfeiture of the charter of a corporation engaging illegall& in the practice of la4 ma& be sought in 9uo 4arranto proceedings. State e( rel. Mc@ittric' v. C.S. <udle& F Co.! $". Mo. +*#; 1.# S.W.#d +-* 01-$=1! cert. <enied! $.# U.S. 6-$; *+ S.Ct. 1#; +# L.Ed. *$* 01-$=1 *. An in5unction 4ill lie against a collection agenc& 4hich ta'es assignments in violation of a statutor& prohibition. Eennett e( rel. Ne4 Gor' Count& La4&ers> Ass>n. v. Supreme Enforcement Corp.! #*. A.<. #6*; #-$ N.G.S. +=.01-$=1; 5udgment aff>d! #=* N.G. *.#; 11 N.E.#d $1* 01-$=1 6. ecover& b& debtor! under tort of intentional or rec'less infliction of emotional distress! for damages resulting from debt collection methods. += A.L. .$d #.1! Section =0b1 =. An in5unction 4ill lie against a corporate collection agenc& engaged in the unauthori2ed practice of la4. Eump v. Earnett! #$* 3o4a $.+; 16 N.W.#d *=01-""1; <epe4 v. Wichita Ass>n. of Credit Men! 1"# @an ".$; "- ,.#d 1."1 01-$*1! cert. <enied! #-= U.S. =1.; *6 S.Ct. *="; +. L.Ed. --= 01-$61 and cert. <enied! #-= U.S. =11; *6 S.Ct. *="; +. L.Ed. --= 01-$61 +. 3n some states! in an action b& a debtor against a creditor under statutes prohibiting various debt collection methods! onl& compensator& damages! to the e(clusion of punitive damages! are permitted! 4hile in other states! punitive damages ma& be recovered. Waterfield Mortg. Co.! 3nc. v. odrigue2! -#S.W.#d 6"1 0?e(. App. San Antonio 1--61 -. ?he publication of a mercantile credit report is not speech 4ithin the protection of the /irst Amendment. Bood v. <unn F Eradstreet! 3nc.! "+6 /.#d #* 0*th Cir. 1-=$1 1.. ?a(es are not 7debts.8 ,err& v. Washburn! #. Cal. $1+; Mc@eesport v. /idler! 1"= ,a. *$#; #$ Atl. =--; Cit& Council of Charleston v. ,hosphate Co.! $" S.C. *"1; 1$ S.E. +"*

11. Use of false! deceptive or misleading representation in collection letter violates /air <ebt Collection ,rotection Act 0/<C,A1! regardless of 4hether representation in 9uestion violates particular subsection of /<C,A prohibiting false or misleading representations. 7?here are fe4! if an&! cases in 4hich massC produced debt collection letter bearing facsimile of attorne&>s signature 4ill compl& 4ith restrictions imposed b& /air <ebt Collection ,ractices Act 0/<C,A1 provision prohibiting false! deceptive or misleading representations; use of attorne&>s signature on collection letter implies that attorne& directl& controlled or supervised process through 4hich letter 4as sent and that attorne& signing letter formed opinion about ho4 to manage case of debtor to 4hom letter 4as sent and in mass mailing! these implications are fre9uentl& false because attorne& 4hose signature is used might pla& no role either in sending letters or in determining 4ho should receive them.8 Clomon v. )ac'son! -++ /.#d 1$1" 0#nd Cir. 1--$1

Due Process
1. When a person of ordinar& intelligence does not receive fair notice that his contemplated conduct is forbidden! prosecution for such conduct deprives him of due process. U.S. v. Nevers! = /.$d *- 0-th Cir. 1--$1 #. When hearing is necessar& to protect defendant>s due process rights! then failure to hold hearing 4ould be abuse of discretion. U.S. v. Benderson! 1- /.$d -1= 0*th Cir. 1--"1 $. Citi2ens must be afforded due process before deprivation of life! libert& or propert&. @elm v. B&att! "" /.$d "1* 06th Cir. 1--*1 ". <ue process re9uires that litigant claim be heard b& fair and impartial fact finder applies to administrative as 4ell as 5udicial proceedings. Muse v. Sullivan! -#* /.#d =+* 0*th Cir. 1--11 *. <ue process of la4 is violated 4hen government vindictivel& attempts to penali2e a person for e(ercising protected statutor& or constitutional rights. U.S. v. Con'ins! -+= /.#d *6" 0-th Cir. 1--$1 6. ,rosecution of Citi2en 4ho is una4are of an& 4rongdoing for 74holl& passive conduct8 violates due process. U.S. v. La&ne! "$ /.$d 1#= 0*th Cir. 1--*1 =. /or the government to punish a person because he had done 4hat the la4 plainl& allo4s him to do is a due process violation of the most basic sort. U.S. v. Duthrie! =+- /.#d $*6 0*th Cir. 1-+61 +. Absent notice! such as 4here regulation is not sufficientl& clear to 4arn part& of 4hat is e(pected of it! agenc& ma& not deprive part& of propert& b& imposing civil or criminal liabilit&. Deneral Electric Co. v. E.,.A. *$ /.$d 1$#" 0<.C. Cir. 1--*1 -. ?he purpose of the due process hearing is to safeguard from deprivation the libert& or propert& rights of protected person! and this can onl& be done 4here the re9uisite hearing is held before the decision ma'er so that the decision ma'er can sift through the facts! 4eigh the evidence and reach the appropriate

conclusion. ,oonce v. Bousing Authorit& of ?ulare Count&! $+- /.Supp. 6$* 0<.C. Cal. 1-=*1 1.. %nl& b& due process of la4 ma& courts ac9uire 5urisdiction over parties. Weiss v. Shapiro Cand& Mfg. Co.! 3nc.! 1+ A.#d =.6! =.= 11. <ue process of la4 means that ever& citi2en shall hold his life! libert& and propert& under the protection of the general la4 4hich governs societ&! and! in the concrete! that in a contest concerning these rights he 4ill be given the opportunit& to contest the propriet& of each step in the action sought to be ta'en against him. Cit& of St. Louis v. Missouri ,ac. &. Co.! #11 S.W. 6=1! 6=# 1#. ?he essential elements of due process of la4 are notice and opportunit& to defend. Simon v. Croft! 1+# U.S. "#= 1$. <ue process re9uires that a person be given fair notice as to 4hat constitutes illegal conduct! so that he ma& conform his conduct to the re9uirements of the la4. U.S. v. Eatchelder! ""# U.S. 11"! 1#$ 1". 3ndividual must be afforded notice and opportunit& for hearing before he is deprived of an& significant propert& interest! and e(ceptions to this principle can be 5ustified onl& in e(traordinar& circumstances. andone v. Appellate <ept. of S.Ct. of Sacramento Co.! "++ ,.#d 1$ 01-=11 1*. Central meaning of 7procedural due process8 is that parties 4hose rights are to be affected are entitled to be heard and! in order that the& ma& en5o& that right! the& must first be notified! also includes right to notice and opportunit& to be heard at meaningful time and in meaningful manner. /uentes v. Shevin! ".= U.S. 6= Cornerstone of due process is prevention of abusive governmental po4er. Weimer v. Amen! +=. /.#d 1".. 0+th Cir. 1-+-1 16. Substantive due process refers to certain actions that the government ma& not engage in! no matter ho4 man& procedural safeguards it emplo&s. ochin v. California! $"# U.S. 16* 1=. Even temporar& deprivation of propert& entitled o4ner to due process 4hich means! as a general rule! reasonable notice and opportunit& for fair hearing. Matter of Special March 1-+1 Drand )ur&! =*$ /.#d *=*! *+. 0-th Cir. 1-+*1 1+. La4 of the LandJ.and 7due process of la48 are s&non&mous. ,lumbing Suppl& Co. v. Cit& of <a&ton! $+ N.E.#d =.! =# <irect

1-. /ailure to adhere to agenc& regulations ma& amount to denial of due process if regulations are re9uired b& constitution or statute. Curle& v. United States! =-1 /.Supp. *# #.. <epriving one of propert& 4ithout 5ust compensation is a denial of due process of la4. Boffman v. Stevens! 1== /.Supp. +.+ 01-*-1 #1. ?he due process clause of the /ifth Amendment guarantees to each citi2en the e9ual protection of the la4s and prohibits a denial thereof b& an& /ederal official. Eolling v. Sharpe! $#= U.S. "-=

##. <ue process clause not onl& applies 4hen one>s ph&sical libert& is threatened but also 4here a person>s good name! reputation! honor or integrit& are at sta'e. Dot'in v. Miller! *1" /.#d 1#* 01-=*1 #$. ?he constitutional provisions that no person shall be deprived of life! libert&! or propert& 4ithout due process of la4! nor private propert& ta'en for public use 4ithout 5ust compensation! are intended as limitations upon the po4er of the government in its dealings 4ith the citi2en! and relate to that class of rights 4hose protection is peculiarl& 4ithin the province of the 5udicial branch of government! and that the courts are bound to give remed& for unla4ful invasion of rights of propert& b& officers of an& branch of government. United States v. Lee! 1.6 U.S. 1-6 01++#1 #". ight to a fair trial is basic re9uirement of due process and includes the right of unbiased 5udge. Baupt v. <illard! 1= /.$d #+* #*. Neither the state nor the municipalit&! 4hich is an arm of the state! can deprive an& person of life! libert&! or propert& 4ithout due process of la4. Wilson v. Aanesville! 1$ %hio St. #+6; 1-- N.E. 1+= #6. ?he provisions in the fifth amendment to the Constitution of the United States! declaring that private propert& shall not be ta'en for public use 4ithout 5ust compensation! is intended solel& as a limitation on the e(ercise of po4er b& the government of the United States! and is not applicable to the legislation of the States. 0/ourteenth Amendment is1 Earron v. Ma&or and Cit& Council of Cit& of Ealtimore! $# U.S. #"$ 01+$$1 #=. ?he due process clause protects an accused against conviction e(cept upon proof be&ond a reasonable doubt of ever& fact necessar& to constitute the crime 4hich he is charged. United States v. )ohnson! =1+ /.#d 1$1=! 1$#. 0*th Cir. 1-+$1 #+. A 5udge ma& not direct a verdict of guilt& no matter ho4 conclusive the evidence. Connecticut v. )ohnson! "6. U.S. =$! +$

Eleventh Amendment
1. A suit against a municipal corporation is not a suit against 7one of the United States8 4ithin the meaning of the Eleventh Amendment! and that such a corporation is the agent of the state government is undoubtedl& true! but it does not follo4 therefrom that a suit against it or its officers is such a suit. Camden 3nterstate .Co. v. Catlettsburg! 1#- /ed. ep. "## 01-."1 #. Eleventh Amendment is limited to those suits in 4hich a state is a part& on the record! and does not prohibit suits against counties. Lincoln Count& v. Lining! 1$$ U.S. *$. 01+-.1 $. Eleventh Amendment does not bar state la4 actions against state officials in their individual capacities. Bunt v. Eennett! 1= E$d 1#6$ 01.th Cir. 1--"1 Ba&s Count& Duardian v. Supple! -6- /#d 111 0*th Cir. 1--#1

". Eleventh Amendment does not erect a barrier against suits to impose 7individual and personal liabilit&8 on state officials under Section 1-+$. Bafer v. Melo! *.# U.S. #1 *. ?he Eleventh Amendment did not in terms prohibit suits b& individuals against the States! but declared that the Constitution should not be construed to import an& po4er to authori2e the bringing of such suits. Bans v. State of Louisiana! 1$" U.S. 1 6. 3n all these cases the effort 4as to sho4! and the court held! that the suits 4ere not against the State or the United States! but against the individuals; conceding that if the& had been against either the State or the United States! the& could not be maintained. Eoard of Li9uidation v. McComb! -# ULSL *$1; United States v. Lee! 1.6 U.S. 6$; ,oinde(ter v. Dreenho4! 1.- U.S. #60Iuoted in Bans! supra1

Equity versus Common Law

1. E9uit& 4ill not interfere 4hen la4 provides ade9uate remed&. E9uit& as administered in America at least! is for the purpose of giving aid to the e(ecution of the la4 according to the principles of 5ustice. 3t cannot be used to supplant or circumvent the la4! but onl& to give aid and assistance to its higher and better principles. Binds v. Minus! 6" S.W.#< 1.-$! 1.-* #. ?here are three classes of cases for 4hich the Constitution grants po4er to the 5udiciar&. Cases in la4! or suits at common la4! 4herein legal rights are to be ascertained! and legal remedies administered according to the old and established proceedings at common la4; Cases or suits in e9uit& 4here e9uitable rights onl& are recogni2ed! and e9uitable remedies administered; Cases or suits in the admiralt&! 4here there is a mi(ture of public or maritime la4 and of e9uit& in the same suit. Eains v ?he Schooner )ames and Catherine! /ederal Cases *=6 $. 3f the common la4 can tr& the case! and give full redress that alone ta'es a4a& the admiralt& 5urisdiction. amse& v. Allegrie! 1# Wall 611 ". ?he phrase 7common la48 found in this clause! is used in contradistinction to e9uit&! admiralt&! and maritime 5urisprudence. ,arsons v. Eedford! et al! $ ,et "$$! "=-. *. ?he common la4! as it 4as received in the United States at the time of the adoption of the Constitution! did not afford a remed& in rem in suits bet4een private persons. Bence the adoption of the savings clause in the )udiciar& Act of 1=+-. C.). Bendr& Co. et al. H. Moore et al.! $1+ U.S. 1$$! 1$* 01-"#1 6. E9uit& 5urisdiction can onl& be invo'ed if there is no plain! ade9uate remed& at la4 or if there is a legal relationship bet4een the parties. Guba Consolidated Dolf /ields v. @il'ear&! #.6 /.#d ++" =. E9uit& 5urisprudence ma& properl& be said to be that portion of remedial 5ustice 4hich is e(clusivel& administered b& a court of e9uit&! as distinguished

from that portion of remedial 5ustice 4hich is e(clusivel& administered b& a court of common la4. )ac'son v. Nimmo! =1 ?enn. *-=! 6.+. ?o sustain a suit in e9uit& in the federal courts it must appear there is no plain! ade9uate! and complete remed& at la4. Guba Consolidated Dold /ields v. @il'ear&! #.6 /.#d ++" -. ?he part& 4ho brings a suit is master to decide 4hat la4 he 4ill rel& upon and does determine 4hether he 4ill bring a suit arising thereunderJ.Whether the complaint state a cause of action on 4hich relief can be granted is a 9uestion of la4 and! 5ust as issues of fact! it must be decided after and not before the court has assumed 5urisdiction over the controvers&. Eell v. Bood! $#= U.S. 6=+ 1.. 7E9uit& 5urisdiction8 imports not the po4er to hear and decide but the cases or occasions 4hen that po4er 4ill be e(ercised. Iueens ,la2a Amusements v. Iueens Eridge ealt& Corp.! $- N.G.S.#d "6$! "6" 11. ?hough 5urisdiction in its proper sense means authorit& to hear and decide a cause! 5urisdiction of a court of e9uit& involves the 9uestion 4hether e9uit& ought to assume 5urisdiction! and hear and decide the cause. Miller v. o4an! -6 N.E. #+*! #+= 1#. While superior court is! in a broad sense! a 7court of e9uit&8! there must be proper pleadings to invo'e application of e9uitable principles before the& can be applied in suit at common la4. Metropolitan Life 3ns. Co. v. Apple4hite! 1+ S.E.#d -$! -= 1$. ?he term 7e9uit& 5urisdiction8 is used in contradistinction to 75urisdiction8 in general! and to 7commonCla4 5urisdiction8 in particular. Henner v. Dreat Northern . Co.! 1*$ /. ".+! "1$! "1" 1". ?he suits 7in e9uit&8 of 4hich the federal courts 4ere given cogni2ance b& the /irst )udiciar& Act constituted that bod& of remedies! procedures and practices 4hich theretofore had been evolved in the English Court of Chancer&! sub5ect to the modifications b& Congress. Sprague v. ?iconic Nat. Ean'! $.= U.S. 161 1*. 7E9uit&8 is that portion of remedial 5ustice 4hich is e(clusivel& administered b& a court of e9uit& as contradistinguished from that portion of remedial 5ustice 4hich is e(clusivel& administered b& court of la4. ,roperties v. Edelman! #-= N.G.S. *=#! *="

alse Arrest ! Imprisonment

1. ,rima facie an& restraint put b& fear or force on the actions of another is unla4ful and constitutes a 7false imprisonment8 for 4hich damages are recoverable. Schram'o v. Eoston Store! #"$ 3ll. App. #*1

#. Miranda decision is not applicable to the routine traffic offense 4here the driver is detained no longer than is necessar& to ma'e out the citation and have it signed! but the Miranda 4arnings must be given prior to an& 9uestioning regarding the state of into(ication of the driver or 4hen an arrest is to be made. Campbell v. Superior Court 3n and /or Marciopa Count&! "=- ,.#d 6+* 01-=11 $. K/alse imprisonment8 consists of Common4eath v. Ere4er! 16= A. $+6! $+unla4ful detention of person.

". An& imprisonment 4hich is not 5ustifiable is a 7false imprisonment.8 Warner v. State! 6+ N.G.S.#d 6.! 66 *. 7/alse imprisonment8 is the illegal restraint of one>s person against his 4ill. Moble& v. Eroome! 1.# S.E.#d ".=! ".6. An action for 7false imprisonment8 is based upon the deprivation of one>s libert& 4ithout legal process. ,arrish v. Be4itt! 1+ S.E.#d 1"1! 1"$ =. 7/alse imprisonment8 is a trespass committed b& one against the person of another b& unla4full& arresting him and detaining him 4ithout an& legal authorit&. Lippert v. State! 1$- N.G.S.#d =*1! =** +. 7/alse arrest8 or 7false imprisonment8 consists of arrest of restraint 4ithout ade9uate legal 5ustification. /orgione v. U.S.! #.# /.#d #"-! #*# -. Where imprisonment has been e(tra5udicial! 4ithout legal process! it is 7false imprisonment.8 Eatten v. McCart&! 1*+ N.E. *+$! *+* 1.. ?he defendant must either prove that he did not imprison the part& or he must 5ustif& the imprisonment. /lo&d v. State! 1# Ar'. "$! "= 11. 7/alse imprisonment8 is the unla4ful restraint of a person 4ithout his consent either 4ith or 4ithout process of la4. <oescher v. obinson! #=1 N.W. =+"! =+6 1#. 7/alse imprisonment8 is forcible 4rong for 4hich action for damages can be maintained against a corporation. ).). Ne4berr& Co. v. )udd! +$ S.W.#d $*-! $61 1$. 7/alse imprisonment8 is unla4ful arrest or detention of person 4ithout 4arrant or b& illegal 4arrant or 4arrant illegall& e(ecuted. eill& v. United States /edelit& F Duarant& Co.! 1* /.#d $1"! $1* 1". ?o constitute the in5ur& of 7false imprisonment8 the t4o re9uisites are the detention of the person! and the unla4fulness of such detention. Cohen v. Lit Eros.! =. A.#d "1-! "#1 1*. 7/alse imprisonment8 ma& be accomplished 4ithout actual arrest! assault or imprisonment! and ma& be committed b& 4ords alone or b& acts alone! or b& both. S.B. @ress F Co. v. Eradsha4! -- ,.#d *.+! *11 16. All that is necessar& to constitute 7false imprisonment8 is that the individual be restrained of his libert& 4ithout an& sufficient legal cause b& 4ords or acts 4hich he fears to disregard. ,anis'o v. <rebelbis! 1#" ,.#d --=! 1...

1=. ,h&sical restraint is not essential to 7false imprisonment8 if 4ords and conduct induce reasonable apprehension that resistance or attempted flight 4ould be futile. BalliburtonCAbbott Co. v. Bodge! "" ,.#d 1##! 1#* 1+. %fficer 4ho refused to issue citation to motorist for violation of speed la4s and directed motorist to follo4 him to office of 5ustice of the peace! and 4ho upon motorist>s failure to follo4 obtained 4arrant and arrested motorist thereunder! 4as guilt& of 7false imprisonment.8 Montgomer& v. State! 1=. S.W.#d =*.! =*# 1-. %ne 4ho charges 7false imprisonment8 must sho4 b& evidence that he 4as falsel& imprisoned b& the persons or person charged! or adduce evidence from 4hich it ma& be reasonabl& inferred that he 4as so imprisoned. )onson! Beller! 6 N.W.#d $*-! $6. #.. An& imprisonment 4hich is not 5ustifiable is a 7false imprisonment8 and sub5ects him 4ho is responsible therefor! 4hether as principle or agent! to an action in tort for damages. Drago v. Hassello! 1- N.G.S.#d $"! $6 #1. 7/alse imprisonment8 consists in the unla4ful detention of the person of another for an& length of time 4hereb& he is deprived of his personal libert&! and furnishes a right of action for damages to the person so detained. Sinclair efining Co. v. Mee'! 1. S.E.#d =6 ##. 3t must not be forgotten that there can be no arrest 4ithout due process of la4. An arrest 4ithout a 4arrant has never been la4ful! e(cept in those cases 4here the public securit& re9uires it; and this has onl& been recogni2ed in felon&! and in breaches of the peace committed in the presence of the officer. E(parte hodes! =- So. "6#! "6*; Sarah Wa&>s Case! "1 Mich. $."; ,in'erton v. Herberg! "" N.W. *=-; State v. Williams! == ,ac. -6*; Adair v. Williams! #" Ari2. "## #$. %fficers are 5ustified in arresting 4ithout 4arrant onl& in cases of felon& and breaches of the peace. ?his elementar&. 3t is needless to cit& authorities. ?illman v. Eeard! +. N.W. #"+ #". When a police officer stops a moving vehicle for a brief detention! it is sufficient to constitute an arrest. * Am )#d! Arrest! Sec. 1! pg 6-6 #*. An&one 4ho assists or participates in an unla4ful arrest or imprisonment is e9uall& liable for the damage caused. ?hus 4here a man 4as illegall& arrested b& a police officer! and 4as placed in a patrol 4agon in 4hich he 4as ta'en to the central station! it 4as held that the t4o officers in charge of the patrol 4agon 4ere liable! along 4ith the arresting officer! for false imprisonment. Coo' v. Bastings! 11" N.W. =1! =# 01-.=1 #6. An illegal arrest is an assault and batter&. State v. #6# 01-*.1 obinson! =# A.#d #6.!

#=. ?he arrest being 4rongful! the defendant is liable for all the in5urious conse9uences to the plaintiff 4hich resulted directl& from the 4rongful act. Mandeville v. Duernse&! *1 Earb. -- 0N.G.1

#+. A false imprisonment generall& includes an assault and batter&! and al4a&s! at least! a technical assault. Elac' v. Clar'>s Dreensboro! 3nc.! 1$- S.E.#d 1--! #.1 01-6"1 #-. /alse imprisonment 4as indictable offense at common la4! and relief b& the part& aggrieved 4as obtained b& an action for trespass vi et armis 04ith force F arms1. Meints v. Buntington! #=6 /ed. #"*! #"- 01-#11 $.. ?he general rule of damages in cases of false imprisonment is that the person causing a 4rongful imprisonment is that the person causing a 4rongful imprisonment is liable for all the natural and probable conse9uences thereof. ?he plaintiff is entitled to recover damages for 4hat the part& 4rongfull& did. @nic'erboc'er Steamboat Co. v. Cusac'! 1=# /ed. $*+! $6. 01-.*1 $1. 3n a case of malicious prosecution the arrest or detention is procured from malicious motives and 4ithout probable cause! but 4as done under la4ful process; 4hereas in false imprisonment the detention is 4ithout proper legal authorit&. Stallings v. /oster! #*- ,.#d 1..6! 1..- 01-*$1 $#. ?he la4 governing this case is elementar&; e(cept for a breach of the peace committed in his presence! or 4hen he has reasonable ground to believe that the person arrested is a felon or is about to commit a felon&! a police officer has no authorit& to arrest 4ithout a 4arrant. Coo' v. Bastings! 11" N.W. =1! =# $$. At common la4! a peace officer ma& arrest 4ithout a 4arrant for a breach of the peace committed in his presence! but for no other misdemeanor. Dalliher v. Common4ealth! 1=. S.E. =$"! =$6 01-$$1 $". ?he dut& of one ma'ing an arrest to bring the prisoner before a proper magistrate that proceedings for the trial of the prisoner ma& be instituted and that he ma& have an opportunit& to give bail or other4ise procure his release! is even more imperative than if a 4arrant had been issued before arrest; and if the prisoner is released 4ithout being brought before such magistrate! the officer or private person 4ho made the arrest becomes a trespasser ab initio. Williams v. Ael2ah Warehouse! 1" ,.#d 1==! 1=+ 01-$#1 $*. 3t is the undoubted right of ever& person in this communit& not to be deprived of libert& 4ithout due process of la4! and that it has long been recogni2ed that arrests 4ithout 4arrants are 5ustified in cases of treason! felon& or breach of the peace! in 4hich actual or threatened violence is an essential element. Common4ealth v. @rubec'! + ,enn. <ist. ep. *#1! *## 01+--1 $6. 3mpudent! abusive or offensive language addressed to a peace officer does not tend to breach the peace! even though it ma& provo'e the officer to anger. ,arrish v. Me&ers! ##* ,. 6$$! 6$" 01-#"1; Salem v. Coffe&! ++ S.W. ==# 01-.*1; ,eople v. Lu'o4s'&! 1*- N.G.S. *-- 01-161; M&ers v. Collett! #6+ ,.#d "$#! "$" 01-*"1; $=. ?he mere refusal to give one>s name and address does not 5ustif& the incarceration of a citi2en. Scott v. /eilschmidt! 1+# N.W. $+#! $+" 01-#11;

$+. An officer cannot arrest because he thin's or has suspicions that a breach of peace might be committed. ?he cause for arresting upon such cases must be 4hen a breach of the peace is 7threatened8 or its occurrence is 7imminent.8 ,rice v. State! 1=* A.#d 11! 16 01-611 $-. An arrest for breach of the peace cannot be 5ustified merel& upon belief or suspicion e(isting in the mind of the officer. Bughes v. State! #$+ S.W. *++! *-6 01-##1 ".. 3f the officer must sho4 the 4arrant! if re9uired! then it is plain that it must be in his actual possession. 3t 4ould be absurd to construe this to mean that after ma'ing the arrest the officer must! if re9uired! ta'e the defendant to some other place and there sho4 him the 4arrant. ,eople v. Shanel&! ". Bun "==! "=+ 01++61 "1. 3t is the dut& of an officer 4ho attempts to ma'e an arrest to e(hibit the 4arrant if he has one. )ones v. State! $- S.E. +61 01-.11 "#. ?he re9uirement to bring an arrested person directl& to a court or 5udge is due process of la4! and as such this procedure cannot be abrogated b& statute. Bill v. Smith! *- S.E. "=* 01-.=1; /olson v. ,iper! 1+6 N.W. #+! #- 01-##1 "$. Neither the guilt nor innocence of the person arrested has an&thing to do 4ith the legalit& of the arrest. Michigan La4 evie4! Hol. $1! ,g =*. 01-$$1 "". Under the great 4eight of authorit&! and officer ma'ing an arrest for a misdemeanor not committed in his presence must have the 4arrant for such arrest in his actual possession if the arrest is to be la4ful. Smith v. State! #.+ So.#d ="6! ="= 01-6+1 "*. ?he 4arrant must at the time of arrest be in the possession of and 4ith the person purporting to act thereunder or of one 4ith 4hom he is acting in con5unction. Accordingl&! 4here the 4arrant is at the officer>s house some distance from the scene of the arrest! or in the hands of another 4ho is not at the scene or arrest! or in the central office of a cit& detective bureau! the arrest is unla4ful. 6 C.).S.! Arrest! Sec. "! pg *=6 "6. Where an officer arrests a person 4ithout a 4arrant! the burden rests upon the officer to plead and prove 5ustification. %ther4ise the arrest is prima facie unla4ful. Evans v. )orgenson! #$" N.W. #-#! #-$ 01-$11 "=. Where a man deprives another of his libert&! the in5ured part& is entitled to maintain an action for false imprisonment! and it is for the defendant to 5ustif& his proceeding b& sho4ing that he had legal authorit& for doing that 4hich he had done. )ac'son v. @no4lton! *$ N.E. 1$" 01+--1 "+. ?he la4 4atches personal libert& 4ith vigilance and 5ealous&; and 4hoever imprisons another! in this countr&! must do it for la4ful cause and in a legal manner. ,ratt v. Bill! 16 Earb. ep. $.$! $.+ 01+*$1

"-. As in all cases of illegal arrest! the officer is bound to 'no4 these fundamental rights and privileges! and must 'eep 4ithin the la4 at his peril. ?hiede v. ?o4n of Scandia Halle&! 1" N.W.#d ".. 01-""1 *.. ?he language of the /ourth Amendment that 7Jno4 Warrants shall issue! but upon probable cause! supported b& %ath or affirmation! and particularl& describingJthe persons or things to be sei2ed!8 of course applies to arrest as 4ell as search 4arrants. Diordinello v. United States! $*= U.S. "+. 01-*+1 *1. E(ecutive officers or cler's are not to determine if a person arrested is to be held or released upon bail! or fi( the amount of bail! since the po4er to do so is 5udicial. Er&ant v. Cit& of Eisbee! #$= ,. $+.! $+1 01-#*1 *#. 3f a person 4as being detained for the purpose of arrest! it 4as the dut& of the arresting officer to ta'e him before an e(amining magistrate as soon as the nature of the circumstance 4ould reasonabl& permit. ?he po4er to arrest does not confer upon the arresting officer the po4er to detain a prisoner for the other purposes. Deldon v. /innegan et al.! #*# N.W. $6-! $=# 01-$"1 *$. A person ma& not be arrested! imprisoned and released upon 5udgment or at the discretion of a constable or an& one else. 3f the alleged offense be criminal in its character the officer ma& arrest and ta'e the offender before a magistrate for trial and a constable 4ho constitutes himself the 5udge! 5ur& and e(ecutioner is guilt& of despotism. State v. ,ar'er! =* N.C. #"-! #*. 01+=61 *". %ne 4ho interferes 4ith another>s libert& does so at his peril. @roger v. ,assmore! -$ ,. +.*! +.= 01-.+1; McEeath v. Campbell! 1# S.W.#d 11+! 1## 01-#-1 **. Unla4ful detention or deprivation of libert& is the basis of an action for the tort of false imprisonment! and that actual sei2ure or the la&ing on of hands is not necessar& to constitute an unla4ful detention. Banser v. Eieber! 1-= S.W. 6+! =. 01-1=1 *6. ?he essential elements of an unla4ful detention are 011 detention or restraint against one>s 4ill; 0#1 the unla4fulness of such detention or restraint. Sinclair efining Co. v. Mee'! 1. S.E.#d =6! =- 01-".1 *=. /alse imprisonment is a 4rong a'in to the 4rongs of assault and battter&! and consists in imposing! b& force or threats! and unla4ful restraint upon a man>s freedom of locomotion. Meints v. Buntington! #=6 /. #"*! #"+ 01-#11 *+. Ever& confinement of a person is an imprisonment! 4hether it be in a common prison! or in a private house! or in the stoc's! or even b& forcibl& detaining one in the public streets. /o( v. McCurnin! #1+ N.W. "--! *.1 01-#+1 *-. ?he po4er of detaining a person arrested! or restraining him of his libert&! is not a matter 4ithin the discretion of the officer ma'ing the arrest. Barness v. Steele! 6" N.E. +=*! +=+ 01-.#1; Stromberg v. Bansen! ##* N.W. 1"+! 1"01-#-1 6.. A 4arrantless arrest b& a peace officer! if challenged! is presumptivel& invalid. Datlin v. U.S.! $#6 /.#d 666

61. A search and sei2ure 4hich precedes an arrest is usuall& considered unla4ful. Sibron v. State! $-# U.S. ". 6#. A 4arrant of arrest is designed to meet the dangers of unlimited and unreasonable arrest of persons 4ho are not at the moment committing a crime. e Moten! #"# So.#d +"E(ample of damages or in5uries sustained because of unla4ful acts: Eodil& pain! great ph&sical inconvenience and discomfort! loss of time! mental suffering! in5ur& to reputation! distress! and anguish! humiliation of mind! embarrassment! shame! public ridicule! invidious publicit&! and public disgrace. /ingerprinting /ingerprint evidence is no e(ception to the rule that all evidence obtained b& searches and sei2ures in violation of the Constitution is inadmissible in a state court. <avis v. Mississippi! $+" U.S. "$6

irst Amendment
1. /irst Amendment rights are not to be abridged or even chilled b& statutor& vagueness! and an& legislative impingement of these rights must be dra4n 4ith precision and narro4 specificit&. Eore v. Dorton! *#6 ,#d $=#. ?his is not to sa& that citi2ens must submit to public authorities li'e docile lambs or fa4ning pupp& dogs! and it is not to den& that at the constitutional level speech need not be a sedative; it can be disruptive. Colten v. @entuc'&! ".= U.S. 1."!1## $. /irst Amendment protects author of boo' from being forced to produce documentation for purpose of proving truth of statements contained in boo'. 3n e Drand )ur& Matter! =** /#$d 1."" 0$rd Cir. 1-+*1 ". ,olice officers are al4a&s free to approach citi2ens and 9uestion them! if the& are 4illing to sta& and listen. U.S. v. %>Neal! 1= /$d #$- 0+th Cir. 1--"1 *. ?he first amendment right to petition for redress of grievances is 7among8 the most precious of the liberties safeguarded b& the Eill of ights; there can be no doubt that the filing of a legitimate criminal complaint 4ith local la4 enforcement officials constitutes an e(ercise of the first amendment right. United States v. B&lton! **+ /.Supp. +=# 01-+#1 6. ?a( protester>s /irst Amendment right to petition for redress of grievances 4as violated 4hen she 4as charged 4ith corruptl& endeavoring to intimidate and impede 3 S agents b& filing factuall& accurate! nonfraudulent criminal trespass complaints against agents after the& entered upon protester>s propert& in total disregard of 7no trespassing8 signs and protester>s previous letters re9uesting that her privac& rights be respected. United States v. B&lton! =1. /.#d 11.6

ourteenth Amendment

1. /ourteenth Amendment substantive due process re9uires that both state legislative and administrative actions that deprive citi2ens of life! libert& and propert& must have some rational basis. ,earson v. Cit& of Drand Elanc! -61 /.#d 1#11 06th Cir. 1--#1 #. ?he adoption of the L3H Amendment completed the circle of protection against violations of the provisions of the Magna Carta! 4hich guaranteed to the citi2en his life! libert&! and propert& against interference e(cept b& the 7La4 of the land!8 4hich phrase 4as coupled in the petition of right 4ith due process of la4. ?he latter phrase 4as then used for the first time! but the t4o are generall& treated as meaning the same. ?his securit& is provided as against the United States b& the L3H and H Amendments! and against the states b& the L3H Amendment. <avidson v. Ne4 %rleans! -6 U.S. -= $. <ue process of La4 is secured against invasions b& the /ederal Dovernment b& this Amendment 0*th1 and is safeguarded against state actions in identical 4ords per the /ourteenth Amendment. Eartlett ?rust Co. v. Elliott! $. /.#d =..! Aff>d ". /.#d $*1

raud
1. Silence can onl& be e9uated 4ith fraud 4here there is a legal or moral dut& to spea' or 4here an in9uir& left unans4ered 4ould be intentionall& misleading. U.S. v. ?4eel! **. /.#d #-= 01-==1 #. Untrue statements amount to constructive fraud. ?hompson v. Bouston! 1$* ,.#d +$"; 1= Wash "*= $. Constructive fraud comprises all acts! omissions! and concealments involving a breach of legal or e9uitable dut&! trust! or confidence 4hich resulted in damage to another. e Arbuc'le>s Estate! ##. ,.#d -*. ". /raud is defined as deceit! deception! artifice! or tric'er& operating pre5udiciall& on the rights of another! and so intended! b& inducing him to part 4ith propert& or surrender some legal right. Also! an&thing calculated to deceive another to his pre5udice and accomplishing the purpose! 4hether it be an act! a 4ord! silence! the suppression of the truth or other device contrar& to the plain rules of common honest&. #$ Am )#d! /raud! Section # *. An&thing calculated to deceive another to his pre5udice and accomplishing the purpose! 4hether it be an act! a 4ord! silence! the suppression of the truth! or other device contrar& to the plain rules of common honest&. #$ Am )#d! /raud! Section #

"ood aith
1. A government officer acting in the course of his official duties is insulated from suit if 011 there e(isted reasonable grounds for the belief that the challenged action 4as appropriate! and 0#1 the officer acted in good faith. Butchinson! v. UN3?E< S?A?ES of America! A political entit& and corporation! 6== /.#d 1$##! 1$#+

#. J.a good faith misunderstanding of the la4 ma& negate 4illfulness! a good faith disagreement 4ith the la4 does not. United States v. ?hiel! 61- /.#d ==+ 01-+.1 $. ?he re9uirement of an offense committed 4illfull& is not met if a ta(pa&er has relied in good faith upon a prior decision of the court. U.S. v. Eishop! "1# U.S. $"6 01-=$1 Dovernment Constraints 1. 3t is 4ell settled that a civil code 4hich contemplates criminal penalties and sanctions is unenforceable! null and void. United States v. Claflin! -= U.S. *"6 01+=+1 #. ?he legislative authorit& of the Union must first ma'e an act a crime! affi( a punishment to it! and declare the court that shall have 5urisdiction of the offense. United States v. Budson! = Cranch $#!$" 01+1#1 $. Crime is contagious; if the government becomes a la4brea'er it breeds contempt for la4; it invites ever& man to become a la4 unto himself; it invites anarch&. %lmstead v. U.S.! #== U.S. "$+ ". ?he state can onl& ta( and regulate something it created. Ward v. Mar&land! 1# Wallace "1+ *. 3t is true that the police po4er of a State is the least limitable of its po4ers! but even it ma& not transcend the prohibition of the Constitution of the United States. ShevlinCCarpenter Co. v. Minnesota! #1+ U.S. *=! 61 6. %ur s&stem of government is based upon the individualit& and intelligence of the citi2en! the state does not claim to control him! e(cept as his conduct to others! leaving him the sole 5udge as to all that onl& affects him. Mugler v. @ansas! 1#$ U.S. 6#$! 6*-C66. =. Dovernment ma& not prohibit or control the conduct of a person for reasons that infringe upon constitutionall& guaranteed freedoms. Smith v. U.S.! *.# /.#d *1# 01-="1 +. ?he United States Dovernment is a foreign corporation 4ith respect to a state. NG E: Merriam! "1 L.Ed. #+= 01-=$1 -. ?he mere fact that a private corporation conducts its business under a contract 4ith the United States does not ma'e it an instrumentalit& of the latter. /idelit& F <. Co. v. ,enns&lvania! #". U.S. $11.. A count& is a person in a legal sense. Lancaster Co. v. ?rimble! $" Neb. =*# 11. A sovereign is not a person. 3n E /o(! *# N.G. *$* 1#. When did the obligation occur and 4hen 4as individual noticedM U.S. v. Eatchelder! ""# U.S. 11" 1$. 7Agenc& action8 includes an& failure to act. Caulfield v. Eoard of Education! ""- /.Supp. 1#.$

1". 3t is apparent! that the framers of the constitution contemplated that instrument as a rule of the government of courts! as 4ell as of the legislature. Wh& other4ise does it direct the 5udges to ta'e an oath to support itM ?his oath certainl& applies! in an especial manner! to their conduct in their official character. Bo4 immoral to impose it on them! if the& 4ere to be used as the instruments! and the 'no4ing instruments! for violating 4hat the& s4ear to supportN Marbur& v. Madison! 1 Cranch 1$= 01+.$1 1*. Suit against a federal official in his official capacit& is a suit against the United States. Bartford Accident F 3ndemnit& Co. v. ?o4n of Saltillo! Miss.! $=1 /.Supp. $$1 01-="1 16. @no4ledge in possession of a government emplo&ee 4ho has a dut& to transmit or receive information is 'no4ledge in the possession of the appropriate agenc&. 3n re Agent %range ,roduct Liabilit& Litigation! *-= /.Supp. =". 1=. <iscretion is the e9uitable decision of 4hat is 5ust and proper under the circumstances. ?he S.S. St&ria v. Morgan! 1+6 U.S. 1! 1+. ?he fundamental ma(ims of a free government seem to re9uire! that the rights of personal libert& and private propert& should be held sacred. Wil'inson v. Leland! #= U.S. 6#= 1-. No consideration of public polic& can properl& induce a court to re5ect statutor& definition of the po4ers of an officer. Eird v. McDoldric'! 116 AL 1.*#.. When agenc& of federal government insinuates itself into local business 4orld! it should! as a general rule! be held to same legal obligations as private propert& o4ner. 0U.S.C.A. Const. Art. 6! cl. #1 Eurroughs v. Bills! *6" /.Supp. 1..=! affirmed ="1 /.#d 1*#* #1. Administrative agencies are re9uired to follo4 their o4n regulations. Ear M@ anches v. Geuther! --" /.#d =$* 01.th Cir. 1--$1 ##. All persons are presumed to 'no4 the la4; 3f an& person acts under an& unconstitutional statute! he does so at his o4n peril; Be must ta'e the conse9uences. 16 Am )ur! 1==! 1=+ #$. ?he Commissioner shall! to the e(tent of authorit& other4ise vested in him! provide for the administration of the United States internal revenue la4s in the U.S. ?erritories and insular possessions and other authori2ed areas of the 4orld. ?.<.%. No. 1*.C.1! *1 /ed eg -*=1! #C#=C+6 #". Absent notice! such as 4here regulation is not sufficientl& clear as to 4arn part& of 4hat is e(pected of it! agenc& ma& not deprive part& of propert& b& imposing civil or criminal liabilit&. Deneral Electric Co. v. E. ,. A.! *$ /.$d 1$#" 0<.C. Cir. 1--*1 #*. After agenc& issues regulations it must abide b& them. Schering Corp. v. Shalala! --* /.#d 11.$ 0<.C. Cir. 1--$1 #6. Congress cannot e(ercise police po4ers 4ithin the states. @eller v. United States! #1$ U.S. 1$+

#=. /ederall& created corporations engaged in business in the States 4ere sub5ect to state la4s. eagan v. Mercantile ?rust Co.! 1*" U.S. "1$ 01+-"1 #+. Agent of government does not have authorit& to ma'e a promise! representation! or agreement that is contrar& to regulations of an e(ecutive department of the United States. )ac'son v. U.S.! *=$ /.#d 11+#-. %ne 4ho deals 4ith the Dovernment assumes the ris' that the officials 4ith 4hom he deals have no authorit&. Airmotive Engineering Corp. v. U.S.! *$* /.#d + $.. /ederal Courts must first determine 4hat propert& or rights to propert& an individual has under state la4 in appl&ing a federal revenue act for purpose of determining 4hether propert& ma& be sold for unpaid ta(es. Berndon v. U.S.! *.1 /.#d 1#1- 01-="1 $1. A failure substantiall& to compl& 4ith the statutor& re9uirements as to the mode and manner or ma'ing the lev& invalidates the ta(; and there must be strict compliance 4ith mandator& proceduresJno ta( can be sustained as valid unless it is levied in accordance to the letter of the statute. Bough v. North Adams! +# N.E. $#. An&thing that is a right cannot be sub5ect to conditions or licensing. Lane v. Wilson! $.= U.S. #6+! #=* $$. An officer 4ho acts in violation of the United States Constitution ceases to represent the government. Eroo'field Const. Co.! 3nc. v. Stuart! #$" /.Supp. -"! -- 01-6"1 $". ?he USA has no inland 5urisdiction. Arndt v. Driggs! 1$" U.S. $16 $*. ?he legislature ma& not! under the guise of protecting the public interests! arbitraril& interfere 4ith private business! or impose unusual or unnecessar& restrictions upon la4ful occupations. 3ts determination as to 4hat is a proper e(ercise of its police po4ers is not final or conclusive! but is sub5ect to the supervision of the courts. La4ton v. Steele! 1*# U.S. 1$$ $6. ,ersons dealing 4ith government cannot rel& upon conversations 4ith officials. Allstate 3ns. Co. v. Adana Mortg. Ean'ers! 3nc.! =#* /.#d 1$#" $=. Substantive common la4 of the states governs the DovernmentOEnvironment. Erie v. ?homp'ins! $." U.S. 6" 01-$+1 /ederal

$+. Agent of government does not have authorit& to ma'e a promise! representation! or agreement that is contrar& to regulations of an e(ecutive department of the United States. )ac'son v. U.S.! *=$ /.#d 11+$-. %ur s&stem of 5urisprudence rests on the assumption that all individuals! 4hatever their position in government! are sub5ect to federal la4 and that no person is so high that he is above the la4. <avis v. ,assman! ""# U.S. ##+ ".. When federal officials are e(ecuting their duties under federal la4! such officials! even 4hen acting pursuant to congressional authori2ation! are sub5ect to restraints imposed b& /ederal Constitution. Eut2 v. Economou! "$+ U.S. "=+

"1. A grand 5ur& indictment is re9uired in an& case 4here a person is being charged 4ith an 7infamous crime8 and that an& crime for 4hich the punishment is imprisonment is an 7infamous crime.8 Ma'in v. United States! 11= U.S. $"+ "#. And the Constitution itself is in ever& sense a la4. Carter v. Carter Coal Co.! #-+ U.S. 1".! #-6 01-$*1 "$. ?he legislature>s determination as to 4hat is a proper e(ercise of its police po4ers is not final or conclusive! but is sub5ect to the supervision of the courts. La4ton v. Steele! 1*# U.S. 1$$ "". Courts should not tolerate or condone disregard of la4 and arbitrar& usurpation of po4er on the part of an& officer. %urs is a government of la4! and not of men! and before an& act of an& official 4ill be sustained b& the courts such act must be authori2ed b& la4. E( parte %4ens! 1. %'la. Crim. ep #+" "*. No consideration of public polic& can properl& induce a court to re5ect statutor& definition of the po4ers of an officer. Eird v. McDoldric'! #== NG "-# "6. ?he public is entitled to be informed as to the procedures and practices of a government agenc&! so as to be able to govern their actions accordingl&. Eerends v. Eut2! $*= /.Supp. 1"$ 01-=$1 "=. All legislation is prima facie territorial. American Eanana Co. v. United /ruit Co.! #1$ U.S. $"=; Ne4 Gor' Central ailroad Co. v. Chisholm! #6+ U.S. #"+. /ailure to adhere to agenc& regulations ma& amount to denial of due process if regulations are re9uired b& constitution or statute. Curle& v. United States! =-1 /.Supp. *# "-. Criminal 5urisdiction of the federal courts is restricted to federal reservations over 4hich the /ederal Dovernment has e(clusive 5urisdiction! as 4ell as to forts! maga2ines! arsenal! doc'&ards or other needful buildings. 1+ U.S.C.! Section "*1 *.. ?he la4s of Congress in respect to those matters do not e(tend into the territorial limits of the States! but have force onl& in the <istrict of Columbia! and other places that are 4ithin the e(clusive 5urisdiction of the national government. Caha v. United States! 1*# U.S. #1* *1. Constitutional restrictions and limitations 4ere not applicable to the areas of lands! enclaves! territories and possessions over 4hich Congress had e(clusive legislative authorit&. <o4ns v. Eid4ell! 1+# U.S. #"" *#. ,ersons dealing 4ith government are charged 4ith 'no4ing government statutes and regulations! and the& assume ris' that government agents ma& e(ceed their authorit& and provide misinformation. Lavin v. Marsh! 6"" /.#d 1$=+ *$. ?he authorit& of public officers to proceed in a particular 4a& and onl& upon specific conditions as to such matters implies a dut& not to proceed in an& manner other than that 4hich is authori2ed b& the la4. /irst Nat>l. Ean' v. /lier! += AL #6=

*". Congress does not have the authorit& and 5urisdiction to regulate commerce 4ithin the *. states of the Union. United States v. Scarborough! "$1 U.S. *6$ **. No sanction can be imposed absent proof of 5urisdiction. Standard v. %lsen! =" S.Ct. =6+ *6. All offices attached to the seat of government shall be e(ercised in the <istrict of Columbia! and not else4here! e(cept as other4ise e(pressl& provided b& la4. ?itle " U.S.C.! Section =# *=. ?he la4 reflects also a Congressional determination that the ta(pa&er 0sic1 should be afforded certain procedural rights! 4hich 3 S is bound to respect. Laing v. United States! "#$ U.S. 161 *+. All household goods o4ned b& the user thereof and used solel& for noncommercial purposes shall be e(empt from ta(ation! and such person entitled to such e(emption shall not be re9uired to ta'e an& affirmative action to receive the benefit of such e(emption. Article -! Section #! ,ara 0"1 Constitution of Ari2ona *-. A ta( penalt& must be properl& assessed and the ta(pa&er properl& noticed before then penalt& is enforceable. Stallard v. United States! +.6 /.Supp. 1*# 01--#1 6.. A 5udicial 4arrant for ta( levies 4as necessar& to protect against un5ustified intrusions into privac&Jforcible entr& b& 3 S officials onto private premises 4ithout prior 5udicial authori2ation is an invasion of privac&. D.M. Leasing Corp. v. United States! "#- U.S. $$+ 61. 3nternal evenue Service! 4ith its e(pertise! is obliged to 'no4 its o4n government statutes and to appl& them realisticall&. Eoth'e v. /luor Engineers F Const.! et al.! =1$ /.#d 1".* 01-+$1 6#. /ederal government agencies are obliged to conform to their o4n regulator& standards. Laningham v. U.S.! # Cl. Ct. *$* 6$. Silence can onl& be e9uated 4ith fraud 4here there is a legal or moral dut& to spea' or 4here an in9uir& left unans4ered 4ould be intentionall& misleading. U.S. v. ?4eel! **. /.#d #-= 01-==1 6". Crime is contagious; if the government becomes a la4brea'er it breeds contempt for la4; it invites ever& man to become a la4 unto himself; it invites anarch&. %lstead v. U.S.! #== U.S. "$+ 6*. %ur s&stem of government! based upon the individualit& and intelligence of the citi2en! the state does not claim to control him! e(cept as his conduct to others! leaving him the sole 5udge as to all that onl& affects him. Mugler v. @ansas! 1#$ U.S. 6#$! 6*-C6. 66. ?he constitutional provisions that no person shall be deprived of life! libert&! or propert& 4ithout due process of la4! nor private propert& ta'en for public use 4ithout 5ust compensation! are intended as limitations upon the po4er of the government in its dealings 4ith the citi2en! and relate to that class of rights

4hose protection is peculiarl& 4ithin the province of the 5udicial branch of government! and that the courts are bound to give remed& for unla4ful invasion of rights of propert& b& officers of an& branch of government. United States v. Lee! 1.6 U.S. 1-6 01++#1 6=. ?he Citi2en 'no4s no person! ho4ever near to those in po4er! or ho4ever po4erful himself! to 4hom he need &ield the rights 4hich the la4 secures to him 4hen it is 4ell administered. When he! in one of the courts of competent 5urisdiction! has established his right to propert&! there is no reason 4h& deference to an& person! natural or artificial! not even the United States! should prevent him from using the means 4hich the la4 gives him for the protection and enforcement of that right. United States v. Lee! 1.6 U.S. 1-6 01++#1 6+. ?he Dovernment of the United States! therefore! can claim no po4ers 4hich are not granted to it b& the Constitution! and the po4ers actuall& granted must be such as are e(pressl& given! or given b& necessar& implication. Euffington v. <a&! =+ U.S. 1## 01+=11 6-. When the United States enters into commercial business it abandons its sovereign capacit& and is to be treated li'e an& other corporation. -1 C.).S.! United States! Sec. " =.. Congress ma& not! under prete(t of e(ecuting its po4ers! pass la4s for accomplishment of ob5ects not entrusted to it b& the Constitution. Ash4ander v. ?.H.A.! #-= U.S. #++ 01-$61 =1. Special provision is made in the constitution for the cession of 5urisdiction from the states over places 4here the federal government shall establish forts or other militar& 4or's. And it is onl& in these places! or in the territories of the United States! 4here it can e(ercise a general 5urisdiction. Ne4 %rleans v. United States! $* U.S. 66# =#. 3t is! 4e thin'! a sound principle! that 4hen a government becomes a partner in an& trading compan&! it divests itself! so far as concerns that transactions of that compan&! of its sovereign character! and ta'es that of a private citi2en. ?he Ean' of the U.S. v. ?he ,lanters> Ean' of Deorgia! ## U.S. -." =$. When the government see's to enforce the la4s! it must follo4 the steps 4hich Congress has specified. Dood4in v. United States! -$* /.#d 1.61 0-th Cir. 1--11 =". Ever& ac9uisition! holding! or disposition of the propert& b& the /ederal Dovernment depends upon proper e(ercise of the constitutional grant of po4er. Mesta Machine Compan& v. Count& of Alleghen&! ,enns&lvania! $## U.S. 1="! 1-+ =*. A husband>s preCmarital ta( liabilit& could be enforced b& lien on his interest in communit& propert&! but not his 4ife>s interest in that propert&. <raper v. United States! #"$ /.Supp. *6$ 0W< Wash. 1-6*1

"rand #ury

1. A grand 5ur& indictment is re9uired in an& case 4here a person is being charged 4ith an 7infamous crime!8 and that an& crime for 4hich the punishment is imprisonment is an 7infamous crime.8 Ma'in v. United States! 11= U.S. $"+ #. /ederal courts ma& e(ercise their supervisor& po4ers over grand 5uries to remed& violations of recogni2ed rights! protect integrit& of federal courts! and deter illegal conduct b& government officials. U.S. v. <eEernardo! ==* /.#d 1"=. 011th Cir. 1-+*1 $. ,rinciple duties of grand 5urors are to determine 4hether probable cause e(ists to believe that crime has been committed and to protect accused from unfounded prosecutions. U.S. v. ,o4ell! +#$ /.#d --6 06th Cir. 1-+=1 ". Constructive amendment that broadens an indictment is reversible error per se! because onl& grand 5ur& can amend indictment. U.S. v. Mills! #- /.$d *"* 01.th Cir. 1--"1 *. 3ndictment must be dismissed on ground of 7duplicit&8 4hen t4o or more separate crimes are 5oined in single count of indictment. U.S. v. Bope! +61 /.#d 1*=" 011th Cir. 1-++1 3mmunit&OLiabilit& 1. An officer 4ho acts in violation of the United States Constitution ceases to represent the government. Eroo'field Co. v. Stuart! #$" /.Supp. -"! -#. 3 S agents are 7relativel& lo4Clevel e(ecutive officers8 4ith a correspondingl& narro4 range of official discretion. Mar' v. Droff! *#1 /.#d at 1$+.C+1 $. All officers! including 5udges! are liable if the& act 4holl& outside of their 5urisdiction or official authorit&! even 4here the act is a discretionar& one. ?he officer is then regarded as not acting in the capacit& of an officer at all. obichaud v. onan! $*1 /.#d *$$ 0-th Cir.! 1-6*1 ". ?a(pa&er: ?he term 7ta(pa&er8 means an& person sub5ect to an& internal revenue ta(. #6 U.S.C.! Section ==.10a101"1 *. Untrue statements amount to constructive fraud. ?hompson v. Buston! 1$* ,#d +$" 6. 3n the beginning of a change the patriot is a scarce man! and brave! and hated and scorned. When his cause succeeds! the timid 5oin him! for then it costs nothing to be a patriot. Mar' ?4ain =. Neither a to4n nor its officers have an& right to appropriate or interfere 4ith private propert&. Mitchell v. Cit& of oc'land! "* Me "-6 +. Ever& corporation formed for governmental purposes is a municipal corporation. Wood4ard v. Livermore /alls Water <ist.! 116 Me +6 -. As long as information contained in agenc&>s files is capable of being verified! then! under ,rivac& Act! agenc& must ta'e reasonable steps to maintain accurac& of information to assure fairness to individual and! if agenc& 4illfull& or intentionall& fails to maintain its records in that 4a&! and conse9uentl& ma'es

determination adverse to individual! it 4ill be liable to that person for mone& damages. Sellers v. Eureau of ,risons! -*- /#d $.= 0<C Cir. 1--#1 1.. Supreme Court held that government agents ma& be held liable for violating constitutional rights. Eivens v. Si( Un'no4n Agents! ".$ U.S. $++ 01-=.1 11. ?here are t4o instances 4hen the plaintiff can sue the United States directl&: 11 Action b& an officer be&ond his statutoril& defined po4ers; #1 4here the po4er or the manner of their e(ecution are unconstitutional. E.@. 3nstrument! 3nc. v. U.S.! =1* /#d =1$ 0#nd Cir. 1-+$1 1#. ?he Attorne& Deneral and 3 S agents do not have absolute immunit&. Cameron v. 3. .S.! ==$ /#d 1#6 01-+*1 Mitchell v. /ors&th! "=# U.S. *11 01-+*1 1$. Dovernment officials ma& be held liable for constitutional 4rongs caused b& their failure to ade9uatel& train or supervise subordinates. Cole v. Eone! --$ /#d 1$#+ 0+th Cir. 1--$1; White v. /arrier! +"- /#d $## 0+th Cir. 1-++1 1". Iualified immunit& defense fails if public officer violates clearl& established right because a reasonabl& competent official should 'no4 the la4 governing this conduct. )ones v. Counce! = /$d 1$*- 0+th Cir. 1--$1; Eenite2 v. Wolff! -+* /#d 66# 0#nd Cir. 1--$1 1*. Eleventh Amendment does not bar state la4 actions against state officials in their individual capacities. Bunt v. Eennett! 1= E$d 1#6$ 01.th Cir. 1--"1; Ba&s Count& Duardian v. Supple! -6- /#d 111 0*th Cir. 1--#1 16. Supervisor ma& be liable based on either: 11 personal involvement in constitutional deprivation or #1 sufficient casual connection bet4een superior>s 4rongful conduct and the constitutional violation. Armendari2 v. ,enman! $1 /$d +6. 0-th Cir. 1--"1 1=. Absolute immunit& protects the prosecutor>s role as advocate for the state! not his or her role as an administrator or investigative officer! and that prosecutorial conduct is given absolute immunit& onl& if it is intimatel& associated 4ith the 5udicial phase of the criminal process. Du2manC ivera v. iveraCCru2! ** /$d #6 01st Cir. 1--*1. 1+. /or purposes of immunit& anal&sis! federal officials are indistinguishable from state officials and receive no grater degree of protection from constitutional claims. Mendenhall v. Doldsmith! *- /$d 6+* 0=th Cir. 1--*1. 1-. When a government agent acts in an unconstitutional manner he becomes liable for mone& damages. Eivens v. Si( Un'no4n Agents! ".$ U.S. $++ 01-=.1 #.. A court cler' can be sued 4hen critical documents are missing from an individual>s appeallate record. Curr& v. ,ucins'i! +6" /.Supp. +$- 01--"1. #1. /air <ebt Collection ,ractices Act 0/<C,A1 permitted recover& of statutor& damages up to P1!...... per violation! rather than P1!...... per action. Wright v. /inance Service of ND WAL@! 3nc.! --6 /#d +#. 06th Cir. 1--$1

##. Dovernment must demonstrate that alleged constitutional error 4as harmless 4hile defendant need not sho4 harm. U.S. v. Mc@inne&! -*" /#d "=1 0=th Cir. 1--#1 #$. After agenc& issues regulations it must abide b& them. Schering Corp. v. Shalala! --* /#d 11.$ 0<.C. Cir. 1--$1 #". An officer 4ho acts in violation of the United States Constitution ceases to represent the government. Eroo'field Const. Co.! 3nc. v. Stuart! #$" /.Supp. -"! -- 01-6"1 #*. Untrue statements amount to constructive fraud. ?hompson v. Buston! 1$* ,#d +$" #6. When federal officials are e(ecuting their duties under federal la4! such officials! even 4hen acting pursuant to congressional authori2ation! are sub5ect to restraints imposed b& /ederal Constitution. Eut2 v. Economou! "$+ U.S. "=+ #=. All persons are presumed to 'no4 the la4; 3f an& person acts under an& unconstitutional statute! he does so at his o4n peril; Be must ta'e the conse9uences. 16 Am )ur 1==!1=+ #+. ?he government 4aives its immunit& 4hen it violates one of its o4n statutes. Bollingshead v. US.! +*C# US?C -==# 0*th Cir. 1-+*1 #-. An officer 4ho acts in violation of the United States Constitution ceases to represent the government. Eroo'field Co. v. Stuart! #$" /.Supp. -" 01-6"1 $.. Dovernment immunit& violates the common la4 ma(im that ever&one shall have a remed& for an in5ur& done to his person or propert&. /iremans 3ns. Co. of Ne4ar'! N) v. Washburn Count&! +* N.W.#d +". 01-*=1 $1. 3n actions claiming that a government official acted in violation of the Constitution or of statutor& authorit&JCongress has either 4aived sovereign immunit& or the doctrine does not appl&. 0* U.S.C.! Section =.#1 Larson v. <omestic and /oreign Commerce Corp.! $$= U.S. 6+#! 6+-C-1; Bill v. United States! *=1 /.#d 1.-+! 11.# 0-th Cir. 1-=+1 $#. )udges are not immune from criminal sanctions. E( parte Hirginia! 1.. U.S. $$- 01+=-1 $$. ?he court of appeals for the Si(th Circuit has reaffirmed it vie4 that a 5udge loses all immunit& 4hen he acts in absence of all 5urisdiction. Gates v. Boffman Estates! #.- /.Supp. =*= $". 3t is 4ell established that 5udges ma& be en5oined from interfering 4ith citi2en>s rights. Eramlett v. ,eterson! $.= /.Supp. 1."$*. )udges ma& be punished criminall& for 4illful deprivations of constitutional rights on the strength of 1+ USC! Section #"#. 3mbler v. ,achtman! "= L.Ed.#d 1#+ $6. State e(ecutive officials are not entitled to absolute immunit& for their official actions! and that the phrase 7acting in their official capacities8 is best understood

as a reference to the capacit& in 4hich the state officer is sued! not the capacit& in 4hich the officer inflicted the alleged in5ur&. Bafer v. Melo! *.# U.S. #1 $=. /ederal government officials are presumed to act conscientiousl& and in good faith in the discharge of their duties. AscoC/alcon 33 Shipping Co. v. U.S.! $# /ed. "-* 01--"1 $+. 3f a ta(pa&er has informed an 3 S agent that he or she believes that there is an error in an assessment and the agent continues collection action! 4ithout first determining if the ta(pa&erQ> argument has merit! such an agent loses his or her immunit& from a suit! and becomes personall& liable for an& damages inflicted upon the citi2en. Eoth'e v. /luor Engineers! =1$ /.#d 1".* 01-+$1 $-. A 5udge can be sued if he acts outside the scope of his authorit& or 5urisdiction. )o&ce v. Bic'e&! 1"= N.E.#d 1+= 01-*+1; Bale& v. ?ro&! $$+ /.Supp. =-" 01-=#1; @oen v. Long! $.# /.Supp. 1$+$; Staambler v. <illion! #++ /.Supp. 6"6 ".. When state official acts under state la4 in manner violative of /ederal Constitution he comes into conflict 4ith superior authorit& of that Constitution and is stripped of his official or representative character and sub5ected in his person to conse9uences of his individual conduct; a state has no po4er to impart to him an& immunit& from responsibilit& to supreme authorit& of United States. Scheuer v. hodes! "16 U.S. #$# 01-="1 "1. ?o be 4ithin scope of his emplo&ment! it is onl& necessar& that action of federal official 4ho claims absolute immunit& bears some reasonable relation to and connection 4ith his duties and responsibilities. @night v. United States! *-6 /.Supp. *"$ 01-"+1 "#. When a state appears as a part& to a suit! she voluntaril& casts off the robes of her sovereignt&! and stands before the bar of a court of her o4n creation in the same attitude as a individual litigant; and her rights are determined and fi(ed b& the same principles of la4 and e9uit&! and a 5udgment for or against her must be given the same effect as 4ould have been given it had it been rendered in a case bet4een private individuals. State v. Cloudt! +" S.W. "1*! "16; "$. ?he State at all time voluntaril& appears before her courts. 3f she elects to so appear! there are no special privileges to be accorded b& the courts. ?o accord the State an& such special privileges 4ould defeat the purpose of the appearance. ?he government is bound b& la4 5ust as the citi2en. Barris v. %>Connor! 1+* S.W.#d --$! --+; "". 3t is li'e4ise a general rule that 4hen the State enters the courts as a litigant it casts off its robe as a sovereign! comes as 4ould an individual litigant! and is bound b& the 5udgment rendered as 4ould an individual litigant. State v. Cit& Nat>l. Ean' of Austin! *=+ S.W.#d 1** 01-=-1 "*. Eleventh Amendment does not erect a barrier against suits to impose 7individual and personal liabilit&8 on state officials under Section 1-+$. Bafer v. Melo! *.# U.S. #1

"6. ?he mere fact that Drand iver <am Authorit& is an agenc& of the state does not e(tend to it 7sovereign immunit&.8 Drand B&dro v. Drand iver <am! Authorit&! 1$- ,.#d =-+ "=. ?he state>s 7sovereign immunit& from liabilit&8 e(ists 4hen the state is engaged in a governmental function! and is distinguishable from the state>s 7sovereign immunit& from suit.8 Manion v. State! * N!.W.#d *#=! *#+ "+. %fficer proceeds under color of state la4 if proceeding in official capacit&! even though acts committed are not 4ithin his authorit&! or are in e(cess of his authorit&. Ar'ansas use of ?emple v. Central Suret& F 3ns. Corp.! 1.# /.Supp. """ 01-*#1 "-. %ne ma& violate 1+ USCS #"# b& 4illful failure to carr& out his dut&. Catlette v. United States! 1$# /.#d -.# 01-"$1 *.. ?he po4er to regulate does not include the po4er to prohibit; ?o regulate is not s&non&mous 4ith to prohibit. ,eople v. Dad4a&! #+ N.W. 1.1 *1. Attorne&s ma& be sanctioned for impugning integrit& of 5udge or of court onl& if their statements are false; truth is absolute defense. Standing Committee v. Gagman! ** /.$d 1"$. 0-th Cir. 1--*1 *#. Constructive fraud comprises all acts! omissions! and concealments involving a breach of legal or e9uitable dut&! trust! or confidence 4hich resulted in damage to another. e Arbuc'le>s Estate! ##. ,.#d -*. *#. <efendants> sovereign immunit& defense 4as inappropriate since suit 4as initiated against defendants in their individual capacities and not against the federal government. Lo5es'i v. Eoandl! 6#6 /.Supp. *$. 01-+*1 *$. /ederal emplo&ees ma& become personall& liable for constitutional deprivation b& direct participation! failure to remed& participation! failure to remed& 4rongs after learning about them! creation of a polic& or custom under 4hich unconstitutional practices occur! or gross negligence in managing subordinates 4ho cause violations. Dallegos v. Baggert&! Northern <ist. of Ne4 Gor'! 6+- /.Supp. -$ *". Acts of administrative assistants are deemed acts of head of department. Alvord v. United States! -* U.S. $*6 01+==1; #" L.Ed. "1" **. /ederal official is immune from suit unless a plaintiff alleges either that the United States did not delegate to the official the po4er to act as he did or that his e(ercise of that po4er violates the /ederal Constitution. State of Wis. H. Ea'er! 6-+ /.#d 1$#$! cert. denied 1.$ S.Ct. $*$=; "6$ U.S. 1#.=; == L.Ed.#d 1$++ *6. ?here is no such blan'et immunit& for an arm of government. Eoth'e v. /luor Engineers and Constructors! 3nc.! =1$ /.#d 1"1# 01-+$1 *=. ?he court of appeals for the Si(th Circuit has reaffirmed its vie4 that a 5udge loses all immunit& 4hen he acts in absence of all 5urisdiction. Lucarell v. McNair! "*$ /.#d +$6 01-=#1

*+. ?he Seventh Circuit Court of Appeals has held that a public official does not have immunit& simpl& because he operates in a discretionar& manner. 3t indicated that public servants are to be held liable 4hen the& abuse their discretion or acted in a 4a& that 4as arbitrar& fanciful! or clearl& unreasonable. Littleton v. Eerling! "6+ /.#d $+- 01-=#1 *-. %ur s&stem of 5urisprudence rests on the assumption that all individuals! 4hatever their position in government! are sub5ect to federal la4. Eut2 v. Economou! "$+ U.S. "=+ 6.. )udges do not en5o& 5udicial immunit& from unconstitutional behavior. Eggar v. Cit& of Livingston! ". /.$d $1# 0-th Cir. 1--"1 61. Iualified immunit& defense fails if public officer violates clearl& established right because a reasonabl& competent official should 'no4 the la4 governing his conduct. )ones v. Counce! = /.$d 1$*- 0+th Cir. 1--$1 6#. Supervisor ma& be liable based on either! 011 personal involvement in constitutional deprivation or 0#1 sufficient casual connection bet4een subordinate>s 4rongful conduct and the constitutional violation. Armendari2 v. ,enman! $1 /.$d +6. 0-th Cir. 1--"1 6#. State 5udge does not en5o& 5udicial immunit& from unconstitutional behavior 4hen facts are sufficient to grant part& declarator& or in5unctive relief against 5udge. Eggar v. Cit& of Livingston! ". /.$d $1# 0-th Cir. 1--"1 6$. Absolute immunit& protects the prosecutor>s role as advocate for the state! not his or her role as an administrator or investigative officer. Du2manC ivera v. iveraCCru2! ** /.$d #6 01st Cir. 1--*1 6". /or purposes of immunit& anal&sis! federal officials are indistinguishable from state officials and receive no grater degree of protection from constitutional claims. Mendenhall v. Doldsmith! *- /.$d 6+* 0=th Cir. 1--*1 6*. Administrative agencies are re9uired to follo4 their o4n regulations. Ear M@ anches v. Geuther! --" /.#d =$* 01. Cir. 1--$1 66. )udge must be fair to all parties and ma& not do or sa& an&thing that might pre5udice either litigant. U.S. v. ,rice! 1$ /.$d =11 0$rd Cir. 1--"1 6=. ,erson is not criminall& responsible unless criminal intent accompanies 4rongful act. Dasho v. U.S.! $- f.$< 1"#. 0-?B Cir. 1--"1 6+. ?he Supreme Court held that state statutes did not ta'e precedent over constitutional la4. )ames v. @entuc'&! "66 U.S. $"1 6-. /ederal officers see'ing absolute immunit& from personal liabilit& for unconstitutional conduct must bear burden of sho4ing that public polic& re9uires e(emption of that scope. Barlo4 v. /it2gerald! "*= U.S. +.. =.. Sovereign immunit& serves to protect federal government from unconsented suits that go to invading public treasur& and mandating governmental action! but doctrine does not e(tend to protect governmental officers from personal liabilities arising out of their official activities. Neel& v. Elumenthal! "*+ /.Supp. -"*

=1. ,urpose of doctrine of official immunit& is to ensure that government officials are free to e(ercise their duties 4ithout fear of damage suits in respect to acts done in the course of their duties. Washburn v. Shapiro! ".- /.Supp. $ =#. Dovernment cannot be held responsible for actions of its agents unless those actions 4ere performed in the scope of their duties. U.S. v. Levering! "** /.Supp. 116* =$. Dovernment officials performing discretionar& functions are entitled to 9ualified immunit& from liabilit& in civil rights suit unless their conduct violates clearl& established statutor& or constitutional rights of 4hich reasonable person 4ould have 'no4n. ?horsted v. @ell&! +*+ /#d *=1 0-th Cir. 1-++1 =". When the United States enters into commercial business it abandons it sovereign capacit& and is to be treated li'e an& other corporation. -1 C.).S.! United States! Section " =*. 3mmunit& from suit is a high attribute of sovereignt& a prerogative of the State itself 4hich cannot be availed of b& public agents 4hen sued for their o4n torts. ?he 11th Amendment 4as not intended to afford them freedom from liabilit& in an& case 4here! under color of their office! the& have in5ured one of the State>s citi2ens. ?o grant them immunit& 4ould be to create a privileged class free from liabilit& from 4rongs inflicted or in5uries threatened. ,ublic agents must be liable to the la4! unless the& are to be put above the la4. Bop'ins v. Clemson Agri. College! ##1 U.S. 6$6; %ld Colon& ?rust Co. v. Seattle! #=1 U.S. "#= =6. ,ublic officials are entitled to 9ualified immunit& from liabilit& for civil damages so long as their conduct does not violate clearl& established statutor& or constitutional right. ichardson v. Sels'&! * /.$d 616 0#nd Cir. 1--$1 ==. Silence can onl& be e9uated 4ith fraud 4here there is a legal or moral dut& to respond or 4here an in9uire left unans4ered 4ould be intentionall& misleading. United States v. ,rudden! "#" /.#d 1.#1 01-=.1; United States v. ?4eel! **. /.#d #-= 01-==1 =+. State court 5udges are not immune from in5unctive po4er of federal court if actions of such 5udges are in contravention of la4 or e(ceed their constitutional authorit&. Bodges v. Bamilton Municipal Court! $"- /.Supp. 11#* 01-=#1 =-. ?he pubic is entitled to be informed as to the procedures and practices of a governmental agenc&! so as to be able to govern their actions accordingl&. Eerends v. Eut2! $*= /.Supp. 1"$ 01-=$1 +.. ?he act of a public official of a state is the act of the state in depriving an individual of propert&! life! or libert& 4ithout due process. Neal v. <ele4are! 1.$ U.S. $=. +1. Neither the state nor the municipalit&! 4hich is an arm of the state! can deprive an& person of life! libert&! or propert& 4ithout due process of la4. Wilson v. Aanesville! 1$ %hio St. #+6; 1-- N.E. 1+=

+#. 3f an administrative officer or agenc& acts outside the scope of its authorit& or 5urisdiction! its act are null and void. <oolan v. Carr! 1#* U.S. 61+ +$. When federal officials perpetuate constitutional torts! the& do so ultra vires and lose the shield of sovereign immunit&. Williamson v. U.S. <ept. of Agriculture! +1* /.#d $6+". <ecenc&! securit& and libert& ali'e demand that government officials shall be sub5ect to the rules of conduct that are commands to the citi2en. U.S. v. %lmstead! #== U.S. "$+ 01-#+1 +*. Abuse of <iscretion C <ecision b& 4him or caprice! arbitraril&! or from a bad motive 4hich amounts practicall& to a denial of 5ustice as a clearl& erroneous conclusion! one that is clearl& against logic and effect of the facts presented. * Am )#d! AFE! Sec. ==" +6. Abuse of ,rocess C ?he malicious perversion of a regularl& issued civil or criminal process! for a purpose! and to obtain a result not la4full& 4arranted or properl& attainable thereb&! and for 4hich perversion and action 4ill lie to recover the pecuniar& loss sustained. 1 Am )#d! Abuse ,! Sec. # +=. Malicious abuse of process is the emplo&ment of a process in a manner not contemplated b& la4! or to effect a purpose 4hich such a process is not intended b& la4 to effect. 1 Am )#d! Abuse ,! Sec. # ++. Libel is a malicious defamation e(pressed in printing or 4riting! or b& signs! pictures! etc.! tending to in5ure the reputation of another! thereb& e(posing such person to public hatred! contempt! or ridicule. Benr& v. Cherr&! $. 3 1$; =$ A. -= +-. Assault consists of an offer to do bodil& harm! made b& a person 4ho is in a position to inflict it; an essential element being a reasonable apprehension of imminent ph&sical in5ur&! so that an& movement! ho4ever threatening! 4hich does not produce fear of ph&sical harm! is not an assault. Benr& v. Cherr&! $. 3 1$; =$ A. =-.. 7Agenc& action8 includes an& failure to act 0* USC **1 01$11. Caulfield v. Eoard of Education! ""- /.Supp. 1#.$ 0E< NG 1-=+1 -1. Attorne& Deneral>s failure to conduct preliminar& investigation under Ethics 3n Dovernment Act 0#+ USC *-1 et se9.1 is agenc& action sub5ect to 5udicial revie4. <ellums v. Smith! *=$ /.Supp. 1"+- 0N< Cal. 1-+$1 Under 1+ USCS #"#! 7color of la48 includes misuse of po4er possessed b& virtue of state la4 and made possible onl& because 4rongdoer is clothed 4ith authorit& of state la4. United States v. ame&! $$6 /.#d *1# 0CA- Cal 1-+.1 -#. 1+ USCS #"# applies to actions ta'en under color of both state and federal la4. United States v. %therson! 6$= /.#d 1#=6 0CA- Cal 1-+.1 -$. Supervisor& liabilit& ma& be imposed under ?itle "#! Sec. 1-+$! 4hen an official has actual or constructive notice of unconstitutional practices and

demonstrates 7deliberate indifference8 b& failing to act. Meri4ether v. Coughlin! +=- /.#d 1.$= 0#nd Cir. 1-+-1 -". ?he man& claims of immunit& from suit have therefore been uniforml& denied! 4here the action 4as brought for in5uries done or threatened b& public officers. 3f the& 4ere indeed agents! acting for the state! the&Rthough not e(empt from suitRcould successfull& defend b& e(hibiting the valid po4er of attorne& or la4ful authorit& under 4hich the& acted. Cunningham v. Macon F E. . Co.! 1.- U.S. ""6! "*# -*. Corporate agents or individual officers of the State stand in no better position than officers of the general government! and as to them it has often been held that 7the e(emption of the United States from 5udicial process does not protect their officers and agents! civil or militar&! in time of peace! from being personall& liable to an action of tort b& a private person! 4hose rights of propert& the& have 4rongfull& invaded or in5ured! even b& authorit& of the United States.8 Eel'nap v. Schild! 161 U.S. 1+ -6. 7,unitive damages8 ma& be available in section 1-+$ actions 4hen conduct is motivated b& evil motive or intent or 4hen it demonstrates rec'less or callous indifference to federall& protected rights. Smith v. Wade! "61 U.S. $.! *6 -=. ?he 5ur& a4arded punitive damages because it found that the defendants> conduct 4as malicious! 4anton! or oppressive. Meri4ether v. Coughlin! +=- /.#d 1.$= 0#nd Cir. 1-+-1 -+. ,laintiff ma& sue government agents personall& for damages 4hile simultaneousl& suing United States agenc& and agents officiall& for in5unctive and declarator& relief. Lope2 v. Aran! 6.. /.Supp. $#$ --. %ur s&stem of 5urisprudence rests on the assumption that all individuals! 4hatever their position in government! are sub5ect to federal la4; in light of such principle! federal officials 4ho see' absolute e(emption from personal liabilit& for unconstitutional conduct must bear burden of sho4ing that public polic& re9uires an e(emption of that scope. Eut2 v. Economou! "$+ U.S. "=+! on remand "66 /.Supp. 1$*1! affirmed Economou v. U.S. <ept. of Agriculture! 6$$ /.#d #.$ 1... 3mmunit& available to federal official depends not on official>s 5ob title or agenc&! but on function that person 4as performing 4hen ta'ing the actions that provo'ed la4suit. Eoth'e v. /luor Engineers and Construction! 3nc.! =1$ /.#d 1".*! vacated ?err& v. Eoth'e! 1." S.Ct. $*66! on remand =$- /.#d "+" 1.1. A supervisor can be held liable for civil rights violations 4here his conduct is causall& related to constitutional violations committed b& his subordinate. Beller v. ,lave! ="$ /.Supp. 1**$ 01--.1 1.#. )udiciall& created doctrine of official immunit& confers immunit& on government officials for discretionar& acts 4ithin the scope of their authorit&. And to be entitled to official immunit&! federal officials must sho4 that their conduct 4as authori2ed! but the mere fact of authori2ation is insufficient! in itself! to immuni2e the conduct; in addition! the federal officials must sho4 that the& acted

reasonable and in good faith. Eenford v. American Eroadcasting Companies! 3nc.! *.# /.Supp. 11"+ 1.$. Under doctrine of official immunit&! federal officials are absolutel& immune form liabilit& form commonCla4 torts allegedl& committed during performance of an& official duties that re9uire e(ercise of 5udgment or discretion. Ne4'ir' v. Allen! **# /.Supp. + 1.". /ederal official en5o&s absolute immunit& from commonCla4 tort claims so long as his allegedl& tortious actions 4ere discretionar& 4ithin outer perimeter of his authorit&. ichards v. Miles'i! *6= /.Supp. 1$-1 1.*. /ederal la4 enforcement officers are entitled onl& to 9ualified! or good faith! immunit&. /ors&th v. @leindienst! *-- /.#d 1#.$! certiorari denied Mitchell v. /ors&th! "*$ U.S. -1$! on remand ==# /.#d +-" 1.6. A court is all po4erful 4ithin its 5urisdiction! but is absolutel& po4erless in an& legitimate sense 4hen acting outside thereof. Barrigan v. Dilchrist! 1#1 Wis. 1#=; -- N.W. -.- 01-."1 1.=. We have recogni2ed that 4hen the ta(pa&er challenges the procedural regularit& of a ta( lien and the procedures used to enforce the lien! and not the validit& of the ta( assessment! sovereign immunit& is 4aived. Lonsdale v. United States! -1- /.#d 1"". 01.th Cir. 1--.1 1.+. ?he rule laid do4n in the Si( Carpenter>s case! + Co'e 1"6! that if a man abuses an authorit& given him b& the la4 he becomes a trespasser ab initio! has never been 9uestioned. Eass v. State! -# N.G.S.#d "# 01-"-1 1.-. When one fails to perform part of his dut& and it impinges upon the rights of a citi2en! he is said to be a trespasser from the beginning because his 4hole 5ustification fails! and he stands as if he never had an& authorit& at all to act. Eroc' v. Stimson! 1.+ Mass. *#. 01+=11; Befler v. Bunt! 11# A. 6=*! 6=6 01-#11 11.. %ne 4ho interferes 4ith another>s libert& does so at his peril. @roger v. ,assmore! -$ ,. +.*! +.= 01-.+1; McEeath v. Campbell! 1# S.W.#d 11+! 1## 01-#-1

Implementing $egulations
1. %nce promulgated! these regulations! called for b& the statute itself! have the force of la4! and violations thereof incur criminal prosecutions! 5ust as if all the details had been incorporated into the congressional language. ?he result is that neither the statute nor the regulations are complete 4ithout the other! and onl& together do the& have an& force. 3n effect! therefore! the construction of one necessaril& involves the construction of the other. United States v. Mers'&! $61 U.S. "$1; " L.Ed "#$ #. egulations have force of statute. E( parte eed! 1.. U.S. 1$ 01+=-1 $. egulations have force and effect of la4. Conrad v. Conrad! 1*# ,#d ##1 01-""1

". /ederal government agencies are obligated to conform to their o4n regulator& standards. Laningham v. U.S.! # Cl.Ct. *$* *. /or federal ta( purposes! regulations govern. <odd v. United States! ##$ /.Supp. =+* 01-6$1 6. 3t is entirel& proper for Congress to delegate broad po4ers to e(ecutives to determine details of legislative scheme through implementing regulations. Cameron v. 3nternal evenue Service! *-$ /.Supp. 1*". 01-+"1 3n5ur& 1. With no in5ured part&! a complaint is invalid on its face. Dibson v. Eo&le! 1$Ari2. *1# #. Dovernment immunit& violates the common la4 ma(im that ever&one shall have a remed& for an in5ur& done to his person or propert&. /iremans 3ns. Co. of Ne4ar'! N) v. Washburn Count&! +* N.W.#d +". 01-*=1 $. 73n5ur&8 4ithin constitutional section providing that ever& person! for an in5ur& done him in his land! goods! person or reputation! shall have a remed& b& due process of la4 is damage resulting from breach of a legal dut&. andle v. ,a&ne! 1.= So.#d -.=! -11 ". Constitutional guarantee insuring a remed& for 7in5uries8 to person! propert&! or character does not guarantee a remed& for ever& species of in5ur&! but onl& such as results from invasion or infringement of a legal right or a failure to discharge a legal dut&. Scholberg v. 3tn&re! *+ N.W.#d 6-+! 6-*. An in5ur& is 7irreparable8 onl& if it cannot be undone through monetar& remediesJSimilarl& the right of privac& must be carefull& guarded for once an infringement has occurred it cannot be undone b& monetar& relief. <eerfield Medical Center v. Cit& of <eerfield Eeach! 661 /.#d $#+ 01-+11 6. When it is said in contemplation of the la4 that there is no 4rong 4ithout a remed&! it must be noted that the term 74rong8 has a legal significance distinct from 7damage!8 and is s&non&mous 4ith 7in5uria!8 signif&ing a legal in5ur&. ?homason v. Seaborad Air Line &.! ** S.E. #.*! #.=. E& 7in5uria8 is meant a tortious act. 3t need not be 4illful and malicious; for though it be accidental! if it be tortious! an action 4ill lie. Sprague v. Beaps! = 3ll. App. "$+! ""6 +. 3n5ur& is an& 4rong or damage done to another! either in his person! rights! or reputation! or propert&. <ept. %f Bigh4a&s v. L&'es Eros. S.S. Co.! #" So.#d 6#$! 6#6 -. 3n5ur& strictl& spea'ing! means something done against the right of a part& producing damage. Ga2oo F M.H. .Co. v. /ields! 1-* So. "+-! "-. 1.. ?he 4ords 7in5uries to the person8 have been held to mean not onl& bodil& in5uries but also to include in5uries to the relative rights of persons! as 4ell as in5uries to their absolute rights. Eohring v. @ansas Cit&! =1 S.W.#d 1=.! =$

11. %ne 4ho unintentionall& fails to perform a dut& should pa& compensator& damages onl&! but one 4ho maliciousl& infringes another>s legal rights should pa& both compensator& and punitive damages. Western Union ?el. Co. v. /erguson! 6. N.E. 6=" 01-.11 1#. 3rreparable harm 4ould rest upon plaintiffs sho4ing that their constitutional rights have been violated; violation of a constitutional right is irreparable harm! even for minimal periods of time; one 4ho sho4s deprivation of a constitutional right need go no further in sho4ing the re9uisite harm for in5unctive relief. Bill v. Dreen Count& School <istrict! +"+ /.Supp. 6-= 0S.<. Miss. 1--"1 1$. An& right to monetar& relief against the government must be grounded in contract! statute! or the Constitution. <etriot 3nt>l. Eridge Co. v. United States! $# /ed.Cl. ##* 01--"1 1". ?he factors for determining in5unctive relief are: 011 a substantial li'elihood that plaintiff 4ill prevail on the merits; 0#1 a substantial threat that plaintiff 4ill suffer irreparable in5ur& if the in5unction is not granted; 0$1 that the threatened in5ur& to the plaintiff out4eighs the threatened harm the in5unction ma& do to the defendant; and 0"1 that granting the in5unction 4ill not disserve the public interest. Bill v. Dreene Count& School <istrict! +"+ /.Supp. 6-= 0S.<. Miss. 1--"1 1*. An in5ur& is 7irreparable8 onl& if it cannot be undone through monetar& remedies! and that the right to privac& must be carefull& guarded for once an infringement has occurred it cannot be undone b& monetar& relief. <eerfield Medical Center v. Cit& of <eerfield Eeach! 661 /.#d $#+ 01-+11 16. We have alread& determined that the constitutional right to privac& is 7either threatened or in fact being impaired8! and this conclusion mandates a finding of irreparable in5ur&. Elrod v. Eurns! "#= U.S. S $=$ 1=. ,laintiffs in federal courts must allege some threatened or actual in5ur& resulting from the putativel& illegal action before a federal court ma& assume 5urisdiction. Linda .S. v. ichard <.! "1. U.S. 61"! 61= 1+. Loss and in5ur& are the t4o elements 4hich must e(ist in combination of essentials of a cause of action. 1 Am )#d! Actions! Sec. =.

#urisdiction
1. ?here are three classes of cases for 4hich the Constitution grants po4er to the 5udiciar&. #. Cases in la4! or suits at common la4! 4herein legal rights are to be ascertained! and legal remedies administered according to the old and established proceedings at common la4; Cases or suits in e9uit& 4here e9uitable rights onl& are recogni2ed! and e9uitable remedies administered; Cases or suits in the admiralt&! 4here there is a mi(ture of public or maritime la4 and of e9uit& in the same suit. Eains v ?he Schooner )ames and Catherine! /ederal Cases *=6

$. ?he difference bet4een departments undoubtedl& is! that the legislature ma'es! the e(ecutive e(ecutes! and the 5udiciar& construes the la4;J8 Wa&man and another v. Southland and another! 1. Wall 1! p.$#= ". ?he Constitution of the United States protects the citi2ens from unconstitutional la4s to limit admiralt& so that it: 7Jcould then no longer prescribe its o4n limits in pre5udice of the individual! and to the e(clusion of the common la4 rights.8 amse& v. Allegrie! 1# Wall 611! p. $-*. 3f the common la4 can tr& the case! and give full redress that alone ta'es a4a& the admiralt& 5urisdiction. amse& v. Allegrie! 1# Wall 611 6. ?he phrase 7common la48 found in this clause! is used in contradistinction to e9uit&! admiralt&! and maritime 5urisprudence. ,arsons v. Eedford! et al! $ ,et "$$! "=-. =. ?he common la4! as it 4as received in the United States at the time of the adoption of the Constitution! did not afford a remed& in rem in suits bet4een private persons. Bence the adoption of the savings clause in the )udiciar& Act of 1=+-. C.). Bendr& Co. et al. H. Moore et al.! $1+ U.S. 1$$! 1$* 01-"#1 +. ?he rights enforceable under the 7savings clause8 include not onl& those rights 4hich arise from the general maritime la4 'no4n to the framers of the Constitution and the )udiciar& Act! but also an& ne4 rights created b& the /ederal Dovernment 4hich are amenable to the remedies of the common la4. ,anama . . v. Has9ue2! #=1 U.S. **=!*61 01-#61 -. Where rights secured b& the Constitution are involved! there can be no rule ma'ing or legislation 4hich 4ould abrogate them. Miranda v. Ari2ona! $+" U.S. "$6!"-1 1.. 3n the United States! Sovereignt& resides in the people! 4ho act through the organs established b& the Constitution. Gic' Wo v. Bop'ins! 11+ U.S. $*6!$=. 11. ?his Constitution! and the la4s of the United States 4hich shall be made in pursuance thereofJshall be the supreme la4 of the land; and the 5udges in ever& state shall be bound thereb&! an&thing in the constitution or la4s of an& state to the contrar& not4ithstanding. Article H3! U.S Constitution 1#. All la4s repugnant to the Constitution are null and void. Marbur& v. Madison! * U.S. 1$=!1="!1=6 01+.$1 1$. Constitutional provisions for the securit& of person and propert& should be liberall& construed. 3t is the dut& of the courts to be 4atchful of constitutional rights against an& stealth& encroachments thereon. Eo&d v. U.S. 116 U.S. 6$* 1". ?he basic purpose of a 4ritten constitution has a t4ofold aspect! first the securing to the people of certain unchangeable rights and remedies! and second! the curtailment of unrestricted governmental activit& 4ithin certain defined fields. <u ,ont v. <u ,ont! Sup. $# <ed. Ch. "1$ 1*. ?he constitution of a state is the fundamental la4 of the state. Ware v. B&lton! $ <all 1--

16. ?he Constitution of the United States is the supreme la4 of the land. Article #! Section $! Ari2ona Constitution 1=. Dovernment ma& not prohibit or control the conduct of a person for reasons that infringe upon the constitutionall& guaranteed freedoms. Smith v. U.S.! *.# /#d *1#! C.A. ?e( 01-="1 1+. ?he due process clause of the /ifth Amendment guarantees to each citi2en the e9ual protection of the la4s and prohibits a denial thereof b& an& /ederal %fficial. Eolling v. Sharpe! $#= U.S. "-= 1-. ?he re9uirement of an offense committed 4illfull& is not met! therefore! if a ta(pa&er has relied in good faith upon prior decisions of the court. U.S. v. Eishop! "1# U.S. $"6 01-=$1 at #.1=; U.S. v. Sullivan! #=" U.S. #*-!#6$ #.. ?itle #+ Section 1$-1! this section ma'es it possible to bring actions against government officials and agencies in district court outside <.C. Norton v. McShane! 1" L. Ed#d #=" #1. <ecenc&! securit&! and libert& ali'e demand that government officials shall be sub5ected to the same rules of conduct that are commands to the citi2en. %lmstead v. United States! #== U.S. "$+!"+* ##. <ue process clause not onl& applies 4hen one>s ph&sical libert& is threatened but also 4here a person>s good name! reputation! honor or integrit& are at sta'e. Dot'in v. Miller! *1" /#d 1#* C.A. N.G. 01-=*1 #$. /ailure to secure a valid court order must be punishable for those conducting a search or sei2ure 4ithout it! if the rights of the /ourth Amendment of the U.S. Constitution are to be maintained. 3f no penalt& 4ill be ever attached to a failure to see' a 4arrant! as distinguished from the officer ma'ing their o4n! correct! determination of probable cause! 4arrants 4ill never be sought. U.S. v. Mason! #-. /.Supp. +"$ 01-6+1 #". When the right of privac& must be reasonabl& &ielded to the right of search! is as a rule! to be decided b& a 5udicial officer! not b& a policeman or government enforcement agent. )ohnson v. U.S.! $$$ U.S. 1.!1" #*. 3t is a cardinal rule that! in sei2ing goods and articles! la4 enforcement agents must secure and use search 4arrants 4henever reasonable practicableJ to provide the necessar& securit& against unreasonable intrusions upon the private lives of individuals! the framers of the /ourth Amendment re9uired adherence to 5udicial processes 4herever possible! and subse9uent histor& has confirmed the 4isdom of that re9uirement. ?rupiano v. U.S.! $$" U.S. =.* #6. Mere good faith assertions of po4er and authorit& have been abolished. %4ens v. Cit& of 3ndependence! ""* U.S. 6## #=. 3t is 4ell established that 5udges ma& be en5oined from interfering 4ith citi2en>s rights. ,ierson v. a&! $+6 U.S. *"= 01-6=1 #+. )urisdiction is the right to ad5udicate concerning the sub5ectCmatter in the given case. ?o constitute this there are three essentials: /irst! the court must

have cogni2ance of the class of cases to 4hich the one to be ad5udicated belongs; second! the proper parties must be present; and third! the point decided upon must be in substance and effect 4ithin the issue. e&nolds v. Stoc'ton! 1". U.S. #*"!#6+ #-. We the peopleJdo ordain and establish this Constitution for the United States of America. ,reamble! U.S. Constitution 01=+-1 $.. Constitution e(tends to e9ual protection of the la4s to people! not to interest. ?a&lor v. Mc@eithen! "-- /#d +-$! C.A. La 01-="1 $1. ?he Seventh Circuit Court of Appeals has held that a public official does not have immunit& simpl& because he operates in a discretionar& manner. 3t indicated that public servants are to held liable 4hen the& abused their discretion or acted in a 4a& that 4as arbitrar&! fanciful or clearl& unreasonable. Littelton v. Eerling! "6+ /#d $+- C.A. = 3ll 01-=#1 $#. ?here should be no arbitrar& deprivation of life or libert&! or arbitrar& spoilation of propert&. Earber v. Connoll&! 11$ U.S. #=!$1 $$. Bistor& is clear that the first ten amendments to the Constitution 4ere adopted to secure certain common la4 rights of the people! against invasion b& the /ederal Dovernment. Eell v. Bood! =1 /.Supp.! +1$!+16 01-"=1 $". /ederal courts 4ill be guided b& state la4. U.S. v. /irst Nat>l. Ean'! "=. /#d -"" $*. An&one 4ho voluntaril& gives up his rights! gives up his free agenc& and admits to the 5urisdiction and control of government. Wic'ard v. Wilburn! $1= U.S. 111 $6. ?here is no federal statute 4hich confers criminal 5urisdiction to the federal courts in internal revenue matters. ?itle #+! Section 1$". of the United States Code confers the district courts 4ith civil 5urisdiction alone in matters arising under the 3nternal evenue Code. 3t is 4ell settled that a civil code 4hich contemplates criminal penalties and sanctions is unenforceable! null and void. United States v. Claflin! -= U.S. *"6 01+=+1 $=. When 5urisdiction is challenged! a court of competent authorit& must not onl& cite the statute setting forth the crime! but advert to the specific po4er granted in the Constitution from 4hence the statute arises. U.S. v. Worrall! # U.S. $+" 01=-+1; U.S. v. /o(! -* U.S. 6=. 01+=+1; U.S. v. Ball! -+ U.S. $"$ 01+=-1 $+. 3t is true that this court 4ill not ta'e 5urisdiction if it should not; but it is e9uall& true that it must ta'e 5urisdiction if it should. ?he 5udiciar& cannot! as the legislature ma&! avoid a measure because it approaches the confines of the constitution. We cannot pass it b& because it is doubtful. With 4hatever doubts! 4ith 4hatever difficulties! a case ma& be attended! 4e must decide it! if it be brought before us. We have no more right to decline the e(ercise of 5urisdiction 4hich is given! than to usurp that 4hich is not given. ?he one or the other 4ould be treason to the constitution. Cohens v. Hirginia! 6 Wall 1..

$-. Mandamus is e(traordinar& remed& 4hich is designed to enforce performance of plain positive dut&; thus 4rit 4ill issue onl& 4hen person against 4hom it is directed us under some clear legal obligation to perform act compelled and! moreover! part& see'ing performance of dut& has burden of establishing his clear legal right to performance. @isins'i v. La4ler! "1+ A#d 66 ".. Whenever the legislature passes an act 4hich transcends the limits of the police po4er! it is the dut& of the 5udiciar& to pronounce it invalid! and to nullif& the legislative attempt to invade citi2ens> rights. Colon v. Lis'! "= N.E. $.#!$." "1. Constitutional right of access to courts applies to civil as 4ell as constitutional claims. )ac'son v. ,rocunier! =+- /.#d $.= "#. ?here are t4o instances 4hen the plaintiff can sue the United States directl&: 11 Action b& an officer be&ond his statutoril& defined po4ers; #1 4here the po4er or the manner of their e(ecution are unconstitutional. E.@. 3nstrument! 3nc. v. U.S.! =1* /#d =1$ 0#nd Cir. 1-+$1 "$. /air <ebt Collection ,ractices Act 0/<C,A1 permitted recover& of statutor& damages up to P1!...... per violation! rather than P1!...... per action. Wright v. /inance Service of ND WAL@! 3nc.! --6/.#d +#. 06th Cir. 1--$1 "". Unless contrar& intent appears! federal statutes appl& onl& 4ithin the territorial 5urisdiction of the United States. United States v. Cotroni! *#= /.#d =.+ 01-=*1 "*. ?he courts must obe& the constitution rather than the la4Cma'ing department of government! and must! upon their o4n responsibilit&! determine 4hether! in an& particular case! these limits have been passed. Mugler v. @ansas! 1#$ U.S. 6#$ 01++=1 "6. ?he legislative authorit& of the Union must first ma'e an act a crime! affi( a punishment to it! and declare the court that shall have 5urisdiction of the offense. United States v. Budson! = Cranch $#!$" 01+1#1 "=. Suit against a federal official in his official capacit& is a suit against the United States. Bartford Accident F 3ndemnit& Co. v. ?o4n of Saltillo! Miss.! $=1 /.Supp. $$1 01-="1 "+. /ederal courts are courts of limited 5urisdiction. Bo4ever! under 7absolute right doctrine!8 federal court has obligation to hear cases that legitimatel& come before it. Estrella v. H F D Management Corp.! 1*+ /. .<. *=*! *=+ "-. E9uit& 5urisdiction can onl& be invol'ed if there is no plain! ade9uate remed& at la4 or if there is a legal relationship bet4een the parties. Guba Consolidated Dolf /ields v. @il'ear&! #.6 /.#d ++" *.. )urisdiction once challenged cannot be assumed and must be decided. Maine v. ?hiboutot! 1.. S.Ct. #*.# *1. %nce challenged! 5urisdiction cannot be 7assumed8 it must be proved to e(ist. Stuc' v. Medical E(aminers! -" Ca.#d =*1

*#. /ederal 5urisdiction cannot be assumed! but must be clearl& sho4n. Eroo's v. Ga4'e&! #.. /.#d 6$$ *$. No sanction can be imposed absent proof of 5urisdiction. Stanard v. %lesen! =" S.Ct. =6+ *". Special provision is made in the Constitution for the cession of 5urisdiction from the states over the places 4here the federal government shall establish forts or other militar& 4or's; and it is onl& in these places! or in territories of the United States! 4here it can e(ercise a general 5urisdiction. Ne4 %rleans v. United States! $* U.S. 66# 01+$61 **. No officer can ac9uire 5urisdiction b& deciding that he has it. ?he officer 4hether 5udicial or ministerial decides at his peril. Middleton v. Lo4! $. C *-6 *6. 3t is a 4ell established principle of la4 that all federal legislation applies onl& 4ithin the territorial 5urisdiction of the United States unless a contrar& intent appears. /ole& Erothers v. /ilardo! $$6 U.S. #+1 01-"+1 *=. When 5urisdiction is challenged the burden of proof is on the government. ?itle * U.S.C.! Section **60d1; McNutt v. D.M.! *6 S.Ct. =+-; ?homson v. Das'iel! 6# S.Ct. 6=$ *+. When a court>s 5urisdiction 4ith respect to a particular matter is derived 4holl& from statutes! the statutor& provisions are 7mandator&8 and must be complied 4ith in all respects! and the court! in e(ercising its particular authorit&! is a 7court of limited 5urisdiction.8 /elton v. ,o&nor! 1*6 S.W.#d #==! #=+ *-. E9uit& 5urisprudence ma& properl& be said to be that portion of remedial 5ustice 4hich is e(clusivel& administered b& a court of e9uit&! as distinguished from that portion of remedial 5ustice 4hich is e(clusivel& administered b& a court of common la4. )ac'son v. Nimmo! =1 ?enn. *-=! 6.6.. ?o sustain a suit in e9uit& in the federal courts it must appear there is no plain! ade9uate! and complete remed& at la4. Guba Consolidated Dold /ields v. @il'ear&! #.6 /.#d ++" 61. E9uit& 5urisdiction can onl& be invol'ed if there is no plain! ade9uate remed& at la4 or if there is a legal relationship bet4een the parties. Guba Consolidated Dolf /ields v. @il'ear&! #.6 /.#d ++" 6#. ?he part& 4ho brings a suit is master to decide 4hat la4 he 4ill rel& upon and does determine 4hether he 4ill bring a suit arising thereunderJ.Whether the complaint state a cause of action on 4hich relief can be granted is a 9uestion of la4 and! 5ust as issues of fact! it must be decided after and not before the court has assumed 5urisdiction over the controvers&. Eell v. Bood! $#= U.S. 6=+ 6$. ?he decisions of inferior courts are not! as a rule! binding on the higher courts. Mc3lhenn& Co. v. Daidr&! #*$ /. 61$ 6". )urisdiction must be raised before ma'ing an& plea to the merits! if at all! 4hen it arises from formal defect in the process! or 4hen the 4ant of 5urisdiction over the persons. Smith v. Curtis! = Cal. *+"

6*. Courts do not have 5urisdiction to interfere 4ith action of administrative agenc& until administrative remedies have been e(hausted! at least 4here applicable rules have been follo4ed. Berriges v. United States! $1" /.Supp. 1$*# 01-=.1 66. 7Agenc& action8 includes an& failure to act. Caulfield v. Eoard of Education! ""- /.Supp. 1#.$ 01-=+1 6=. Legislative courts are courts created b& Legislature not named or described b& Constitution. Dorham v. obinson! 1+6 A. +$# 6+. All legislation is prima facie territorial. American Eanana Co. v. United /ruit Co.! #1$ U.S. $"=; Ne4 Gor' Central ailroad Co. v. Chisholm! #6+ U.S. #6-. J..the 5udge of the municipal court is acting as an administrative officer! and not in a 5udicial capacit&. W.L. ?hompson v. Smith! =1 A L 6." 01-$.1 =.. /ailure to adhere to agenc& regulations ma& amount to denial of due process if regulations are re9uired b& constitution or statute. Curle& v. United States! =-1 /.Supp. *# =1. Criminal 5urisdiction of the federal courts is restricted to federal reservations over 4hich the /ederal Dovernment has e(clusive 5urisdiction! as 4ell as to forts! maga2ines! arsenal! doc'&ards or other needful buildings. 1+ U.S.C.! Section "*1 =#. ?he la4s of Congress in respect to those matters do not e(tend into the territorial limits of the States! but have force onl& in the <istrict of Columbia! and other places that are 4ithin the e(clusive 5urisdiction of the national government. Caha v. United States! 1*# U.S. #1* =$. Constitutional restrictions and limitations 4ere not applicable to the areas of lands! enclaves! territories and possessions over 4hich Congress had e(clusive legislative authorit&. <o4ns v. Eid4ell! 1+# U.S. #"" =". %ne 4ho relies on the act of a government agent must sho4 that the agent acted 4ithin his authorit&. Saul9ue v. U.S.! 66$ /.#d -6+ =*. A person is born sub5ect to the 5urisdiction of the United States for purposes of ac9uiring citi2enship at birth! if the birth occurs in a territor& over 4hich the United States is sovereign. $ A Am )ur 1"#.! Aliens F Citi2ens =6. Hiolation of administrative la4 voids the agenc& action. U.S. v. Beffner! "#. /.#d +.- 01-=.1 ==. A distinction must be here observed bet4een e(cess of 5urisdiction and the clear absence of 5urisdiction over the sub5ect matter! an& authorit& e(ercised is a usurped authorit&! 4hen the 4ant of 5urisdiction is 'no4n to the 5udge! no e(cuse is permissible. Eradle& v. /isher! 1$ Wall $$*! $*1 =+. 3n administrative la4 the term 75urisdiction8 has three aspects: 11 personal 5urisdiction; #1 sub5ect matter 5urisdiction; and $1 the agenc&0s1 scope of authorit& under statute. Compliance 4ith 5urisdictional re9uirement is essential to give validit& to the determinations of administrative agencies; absent such

compliance! their acts are void and open to collateral attac'. Actions b& an agenc& in violation of its o4n regulations or procedures are illegal! void and constitute procedural error. Hander Molen v. Stetson! *=1 /.#d 61= 01-==1 =-. ?he la4 re9uires proof of 5urisdiction to appear on the record of the administrative agenc& and all administrative proceedings. Bagans v. Lavine! "1* U.S. *$$ +.. /ederal court had 5urisdiction 4here defendant 4as charged 4ith depriving named person of rights and privileges under Constitution of United States! even though acts of defendants also violated la4s of state. Williams v. United States! 1=- /.#d 6*6 01-*.1 +1. When a code of la4 is part civil and part criminal the entire code must be considered criminal. Eo&d v. United States! 116 U.S. 616 01++61 +#. Congress does not have the authorit& and 5urisdiction to regulate commerce 4ithin the *. states of the Union. United States v. Scarborough! "$1 U.S. *6$ )urisdiction is essential to give validit& to the determination of administrative agencies and 4here 5urisdictional re9uirements are not satisfied! the action of the agenc& is a nullit&. Cit& Street 3mprov. Co. v. ,earson! 1+* ,. -6#; %>Neill v. <ept. of ,rofessional F Hocational Standards! "6 ,#d #$" +$. 3f an& tribunal finds absence of proof of 5urisdiction over person and sub5ect matter! the case must be dismissed. Louisville v. Motle&! #11 U.S. 1"+". State and USA must have 5urisdiction to enforce 5udgmentOdecree 4ithout 4hich it cannot further proceed. Morro4 v. Corbin! 6# SW#d 6"1 +*. ?erm 7district courts8 means onl& those courts 4hich are created under Article $ of the Constitution of the United States. Wells v. United States! #1" /.#d $+. 01-*"1 +6. A fiction of la4 4ill not prevail 4here the fact appears! or 4here there is no voluntar& submission to the court>s 5urisdiction. United States v. 1-6. Eags of Coffee! + Cranch $-+! "1* 01+1"1 +=. ?he criminal 5urisdiction of the United States is 4holl& statutor&. United States v. /lores! #+- U.S. 1$=! 1*1 01-$$1 ++. )urisdiction is obtained 4hen one 4ho appears and b& their pleadings admit 5urisdiction. Eur's v. Las'er! ""1 U.S. +-. No sanction can be imposed absent proof of 5urisdiction. Standard v. %lsen! =" S.Ct. =6+ -.. 3t is incorrect to suppose that the po4er to decide in an& case rests solel& on the averments of a pleading! but on the contrar& the 5urisdiction of a court in no 4a& depends on the sufficienc& or insufficienc& of the pleadings! and if the pleadings state a case belonging to a general class over 4hich the authorit& of the court e(tends! then 5urisdiction attaches! and the court has po4er to hear and determine the issues involved. Aeagler v. Aeagler! 1* S.E.#d "=+! "+.

-1. 7)urisdiction of the sub5ectCmatter: means the po4er! la4full& conferred to deal 4ith the particular sub5ect involved in a particular action in a civil court! or of a particular offense charged in an indictment in a criminal prosecution. ,eople v. Ela'e! 1.6 N.G.S. $1-! $#" -#. A court! in order for its acts to be valid! must have po4er to hear and determine cases of general class to 4hich the proceedings in 9uestion belong! 4hich is 'no4n as 75urisdiction over the sub5ectCmatter8 and must also have po4er to sub5ect the parties in a particular case to the decisions and rulings made b& the court in such case! 4hich is commonl& 'no4n as 75urisdiction over the person.8 Collins v. ,o4ell! #== N.W. "==! "+1 -$. )urisdiction is of three 'inds! of the sub5ectCmatter! of the person! and to render the particular 5udgment 4hich 4as given. Cit& of ,hoeni( v. Dreer! #,.#d 1.6#! 1.6" -". 3n respect to 5urisdiction over the sub5ectCmatter! b& 4hich is meant the nature of the cause of action and of the relief sought! 5urisdiction is ac9uired onl& b& the Constitution of the court. Wolff v. McDaugh! *= So. =*"! =** -*. )urisdiction of the sub5ectCmatter is authorit& to hear and decide a cause! and does not depend on the correctness of the decision entered. ,eople v. Leavens! 1#$ N.E. *"*! *"6 -6. 7)urisdiction over the person8 is the po4er of the court over the parties obtained b& process or appearance. ensing v. ?urner Aviation Corp.! 166 /.Supp. =-.! =-" -=. 7)urisdiction over the person8 is obtained b& the service of process or b& the voluntar& appearance of the part& in the progress of the cause. Cooper v. e&nolds! == U.S. $.+ -+. 7)urisdiction of the sub5ect matter8 e(ists b& operation of la4 onl&! and cannot be conferred upon an& court b& consent or 4aiver. /ederal Under4riters E(change v. ,ugh! 1=" S.W.#d *-+! 6.. --. 7)urisdiction of the sub5ectCmatter8 means not onl& authorit& to hear and determine particular class of action! but also particular 9uestion court assumes to determine. Alberta Lumber Co. v. ,ioneer Lumber Co.! #"" ,. #*.! #*# 1... Civil ule! providing that part& 4aives all ob5ections and other matters then available to him b& motion b& failure to assert same! 4as not intended to appl& to situation in 4hich court has no 5urisdiction to proceed! 4hich is e9uivalent to no 75urisdiction of sub5ectCmatter.8 State e( rel. Ealle4 v. Ba4'ins! $61 S.W.#d +*.! +*# 1.1. ?he component elements re9uired to confer 5urisdiction on a court consists of 75urisdiction of the person!8 and 75urisdiction of the sub5ectCmatter;8 the former refers to bringing person to be affected b& 5udgment before court so as to give him an opportunit& to be heard! 4hile the latter pertains to right of the court! under the la4s of the sovereignt& 4here it sits! to ad5udicate the particular character of case! or issue. S4art2 v. Caudill! 1$. S.W.#d +.! +#

1.#. )urisdiction of 5ustice courts e(ists onl& to the e(tent conferred b& Const. Art. 6! Section $# and Sections ##C#.1 and ##C$.1. State e( rel. Milstead v. Melvin! 1". Ari2. ".# 1.$. ?he mere fact that a matter arises under the la4s of the United States or even involves the 9uestion of constitutionalit& under the /ederal Constitution! is! in itself! insufficient to give 5urisdiction to the federal courts. )urisdiction does not e(ist unless! at the same time! the plaintiff can sho4 affirmativel& that he is in5ured in the 5urisdictional amount. Daitor v. ,eninsular F %ccidential; Steamship Co.! #+= /.#d #*# 01-611 1.". ?he ta( court>s 5urisdiction is confined to determining the amount of deficienc& or overpa&ment for the particular ta( &ear for 4hich the commissioner has sought a deficienc& and the ta(pa&er has filed a petition for revie4; the ta( court has no 5urisdiction to order or to den& a refund! or to decide e9uitable 9uestions; the ta(pa&er must resort to the district court or the court of claims for a resolution of such disputes or for an order granting a refund. Morse v. United States! "-" /.#d +=6 01-="1 1.*. Although the ?a( Court 4as upgraded from an e(ecutive agenc& to an Article 3 7legislative court8 in 1-6-! that change did not e(tend the 5urisdiction of the court to the full 5udicial po4er over 7all cases! in la4 and e9uit&!8 that is vested in 7constitutional courts8 under Article 333. #. /ederal ,rocedures! ?a( Court ,roceedings! Section "+ : +-* 1.6. ?a( court decision on 9uestions of statutor& interpretation is sub5ect to de novo revie4. Wolpa4 v. C3 ! "= /.$d =+= 06th Cir. 1--*1 1.=. )udicial Code provisions! rather than 3nternal evenue Code provisions! 4ere applicable and 4ould give /ederal <istrict Court 5urisdiction regardless of compliance 4ith 3nternal evenue Code provisions if propert& o4ner 4as a nonta(pa&er. Derth v. United States! 1$# /.Supp. +-" 01-**1 1.+. Congress is constitutionall& free to ma'e an administrative determination final and immune from 5udicial revie4 4here it gives the aggrieved part& a right to elect bet4een administrative or 5udicial relief. U.S. v. 3nterstate Commerce Commission! $$= U.S. "#6 1.-. ?he ?a( Court is a court of limited 5urisdiction having such 5urisdiction 0US?C Section -$=*1 as is conferred under the 3nternal evenue Code 0#6 USCS Section =""#1. #. /ederal ,rocedures! ?a( Court ,roceedings! Section "+:+-* 11.. ?he mere transaction of business in a State b& nonCresident natural persons does not impl& consent to be bound b& the process of its courts. /le(ner v. /arson! #"+ U.S. #+111. ?he USA has no inland 5urisdiction. Arndt v. Driggs! 1$" U.S. $16 11#. ?itle #+! Section 1$-1! this section ma'es it possible to bring actions against government officials and agencies in district court outside <.C. Norton v. McShane! 1" L.Ed.#d #="

11$. <istrict court has 5urisdiction to grant in5unctive relief to ta(pa&er 4ho contests 3 S lev& on his 4ages 4here ta(pa&er alleges that 3 S failed to compl& 4ith preClev& notice re9uirements; if 3 S fails to compl& 4ith preClev& notice re9uirements <istrict Court has 5urisdiction to enter in5unctive relief for ta(pa&er. )ensen v. 3 S! +$* /.#d 1-6 01-+=1 11". )urisdiction ma& be defined to be the right to ad5udicate concerning the sub5ect matter in the given case. ?o constitute this there are three essentials: /irst! the court must have cogni2ance of the class of cases to 4hich the one to be ad5udged belongs; second! the proper parties must be present; and third! the point decided must be! in substance and effect! 4ithin the issue. e&nolds v. Stoc'ton! 1". U.S. *+" 01+-11 11*. )udicial code provisions! rather than 3nternal evenue Code provisions! 4ere applicable and 4ould give /ederal <istrict Court 5urisdiction regardless of compliance 4ith 3nternal evenue Code provisions if propert& o4ner 4as a nonC ta(pa&er! Derth v. United States! 1$# /.Supp. +-" 01-**1 116. ?he State of Deorgia is not a sovereign po4er! in the sense that it is e(empt from suit in the federal courts b& a private citi2en. Chisholm v. State of Deorgia! # U.S. "1-! "** 11=. Section ="#10a1 of the 3nternal evenue Code of 1-*" 03. .C.1 states: 7No suit for the purpose of restraining the assessment or collection of an& ta( shall be maintained in an& court b& an& person! 4hether or not such person is the person against 4hom such ta( 4as assessed!8 4ith certain e(ceptions! one of 4hich is a civil action b& a nonta(pa&er 4ho claims that his or her propert& has been the sub5ect of a 4rongful lev&. Bollingshed v. United States! +*C# US?C! -==# 0*th Cir. 1-+*1 11+. Citi2enship! 4hen spo'en of in the Constitution in reference to the 5urisdiction of the courts of the United States! means nothing more than residence. ?he citi2ens of each state are entitled to all the privileges and immunities of citi2ens in the several states; but to give 5urisdiction to the courts of the United States! the suit must be bet4een citi2ens residing in different states! or bet4een a citi2en and an alien. Cooper v. Dalbraith! No. $!1-$! 6 /ed. Cas. 11-. ,laintiffs in federal courts must allege some threatened or actual in5ur& resulting from the putativel& illegal action before a federal court ma& assume 5urisdiction. Linda .S. v. ichard <.! "1. U.S. 61"! 61= 1#.. ?he terms of its consent to be sued in an& court define that court>s 5urisdiction to entertain the suit. United States v. Sher4ood! $1# U.S. *+" 01-"11 1#1. %nl& those 4hose rights are directl& affected can properl& 9uestion the constitutionalit& of a state statute! and invo'e our 5urisdiction in respect thereto. Ne4 Gor' e( rel. Batch v. eardon! #." U.S. 1*#! 161 1##. 3t is conceded that 4here the 5urisdiction depends alone upon the character of the parties! a controvers& bet4een a State and its o4n citi2ens is not embraced 4ithin it; but it is contended that though 5urisdiction does not e(ist on

that ground! it nevertheless does e(ist if the case itself is one 4hich necessaril& involves a federal 9uestion; and 4ith regard to ordinar& parties this is undoubtedl& true. Bans v. State of Louisiana! 1$" U.S. 1 1#$. 3t is a(iomatic that the prosecution must al4a&s prove territorial 5urisdiction over a crime in order to sustain a conviction therefor. United States v. Eenson! "-* /.#d "=* 1#". 3f it is in the interest of 5ustice! court ma& transfer action over 4hich it does not have 5urisdiction to an& other court 4ith 5urisdiction. Sanford v. United States! $# /ed. Cl. $6$ 01--"1 1#*. Eurden of establishing 5urisdiction is on plaintiff. Calhoun v. United States! $# /ed. Cl. ".. 01--"1

%andamus
1. Mandamus is e(traordinar& remed& 4hich is designed to enforce performance of plain positive dut&; thus 4rit 4ill issue onl& 4hen person against 4hom it is desired is under clear legal obligation to perform act compelled and ! moreover! part& see'ing performance of dut& has burden of establishing his clear legal right to performance. @isins'i v. La4ler! "1+ A#d 66 #. Mandamus ma& be issued 4hen petitioner sho4s there is no other means available to obtain desired relief and that his right to issuance of the 4rit is clear and undisputable. Mallard v. U.S. <ist. Court /or S. <ist. %f 3o4a! "-. U.S. #-6; 1." L.Ed.#d $1+; 1.- S.Ct. 1+1" 01-+-1 $. emed& of mandamus is a drastic one! to be invo'ed onl& in e(traordinar& situations. Allied Chemical Corp. v. <aiflon! 3nc.! ""- U.S. $$ 01-+.1 ". ,risoner 4ho alleges cause of action under the Mandamus Act need not rel& upon implied or private right of action under an& other statute. Socer v. Scott! -"# /.#d *-= 0-th Cir. 1--11 *. Mandamus cannot be used as a substitute for an appeal. U.S. v. Dunderson! -=+ /.#d *+. 01.th Cir. 1--#1

%iranda $ights
1. Miranda decision is not applicable to the routine traffic offense 4here the driver is detained no longer than is necessar& to ma'e out the citation and have it signed! but the Miranda 4arnings must be given prior to an& 9uestioning regarding the state of into(ication of the driver or 4hen an arrest is to be made. Campbell v. Superior Court 3n and /or Marciopa Count&! "=- ,.#d 6+* 01-=11 #. ,oint at 4hich defendant must be 4arned of his Miranda rights is 4hen police have both reasonable grounds to believe that crime has been committed and to believe that defendant is one 4ho committed the crime. State v. )elle2! "$1 ,.#d 6-1 01-6=1

$. Whether a suspect is in 7custod&8 for purposes of giving Miranda 4arnings is determined b& an ob5ective test of 4hether a reasonable man 4ould feel that he 4as deprived of his freedom in a significant 4a&. State v. Morse! 61= ,.#d 11"1 01-+.1 ". ,olice officers are re9uired to give Miranda 4arnings onl& 4hen defendant is undergoing 7custodial interrogation!8 that is! 9uestioning initiated b& la4 enforcement officers after person has been ta'en into custod& or other4ise deprived of his freedom of action in an& significant 4a&. Matter of Appeal in Maricopa Count& )uvenile Action No. )C+"$*=! *=6 ,.#d 1"$ 01-=+1 *. Miranda 4arnings become re9uirement onl& 4hen defendant is in custod& or in fact is not free to leave place of interrogation; test of 7custodial interrogation8 is 4hether reasonable man 4ould feel that he 4as deprived of his freedom of action in an& significant 4a&. State v. Batton! *6+ ,.#d 1.". 01-==1 6. Custod& is the crucial issue in determining 4hether Miranda 4arnings are necessar& before a statement made b& defendant ma& be received in evidence against him. State v. Wilson! *"+ ,.#d #$ 01-=61

%otion &o Dismiss

1. A complaint ma& not be dismissed on motion if it states some sort of claim! baseless though it ma& prove to be and inartisticall& as the complaint m& be dra4n. ?his particularl& true 4here the plaintiff is not represented b& counsel. Eroo's v. ,enns&lvania . Co.! -1 /.Supp. 1.1 01-*.1 #. %rdinaril&! insufficient service of process 4ill be s9uashed and the action preserved! 4here there is reasonable prospect that plaintiff ultimatel& 4ill be able to serve defendant properl&! ule " 0c10#10c10ii1. 0Service E& Mail1. Ni'4ei v. oss School of Aviation! 3nc.! +## /.#d -$- 01.th Cir. 1-+=1 $. ?rial court ordinaril& should permit litigant! especiall& pro se litigant! opportunit& to amend complaint before dismissing complaint for failure to state a claim. 3ngram v. Eecher! $ /.$d 1.*. 0=th Cir. 1--$1 ". Complaint should not be dismissed unless it appears be&ond doubt that plaintiff can prove no set of facts in support of his claim 4hich 4ould entitle him to relief. <u'e v. Cleland! * /.$d 1$-- 011th Cir. 1--$1 *. Complaint ma& not be dismissed for failure to state a claim if there is a possibilit& that plaintiff could obtain some relief on the facts stated! even though plaintiff ma& not have pra&ed for the appropriate relief. U.S. v. White Count& Eridge Commission! #=* /.#d *#- 0CA= 1-*.1 6. Whether the complaint states a cause of action on 4hich relief can be granted is a 9uestion of la4 and! 5ust as issues of fact! it must be decided after and not before the court has assumed 5urisdiction over the controvers&. Eell v. Bood! $#= U.S. 6=+ 01-"61

=. A 5udge ordering a dismissal based upon lac' of sub5ect matter 5urisdiction retains no po4er to ma'e 5udgments relating to the merits of the case. Coo' v. @ie4it Sons Co.! ==* /.#d 1.$.! 1.$* 0-th Cir. 1-+*1 +. When considering motion to dismiss for failure to state claim upon 4hich relief can be granted! actual allegations in complaint are ta'en as true and all reasonable inferences are dra4n in favor of plaintiff. Lee v. United States! $# /ed. Cl. *$. 01--*1 -. 3n passing on motion to dismiss! 4hether on ground of lac' of 5urisdiction over the sub5ect matter or for failure to state a cause of action! allegations of complaint should be construed favorabl& to pleader. Scheuer v. hodes! "16 U.S. #$# 01-="1 1.. When dismissal of pro se complaint is 4arranted! it should generall& be 4ithout pre5udice to afford plaintiff opportunit& to file amended complaint. Dood v. Allian! +#$ /.#d 6" 0*th Cir. 1-+=1 11. 3n rendering decision on motion to dismiss! court must presume undisputed factual allegations included in complaint b& plaintiff are true. 0/ C, 1# 0b1 011! #+ USCA1; 3MS Services! 3nc. v. United States! $# /ed. Cl. $++ 01--"1; 1#. ?he part& 4ho brings a suit is master to decide 4hat la4 he 4ill rel& upon and does determine 4hether he 4ill bring a suit arising thereunder. Eell v. Bood! $#= U.S. 6=+ 1$. When challenged 5urisdictional facts are so closel& tied to the merits of a claim that a dismissal for lac' of sub5ect matter 5urisdiction is essentiall& a dismissal on the merits! the court should generall& assume 5urisdiction and decide the case on its merits. Le4is v. United States! $# /ed. Cl. $.1 01--"1 1". Court of Appeals ma& not assume the truth of allegations in a pleading 4hich are contradicted b& affidavit; if a plaintiff>s proof of 5urisdiction is limited to 4ritten material! it is necessar& onl& for the materials to demonstrate facts 4hich support a finding of 5urisdiction in order to avoid a motion to dismiss. <ata <isc.! 3nc. v. S&stems ?ech. Assocs.! 3nc.! **= /.#d 1#+. 0-th Cir. 1-==1 1*. <ismissal based on failure to state a claim re9uires a 5udgment on the merits and cannot be decided before the court assumes 5urisdiction. Wages v. 3. .S.! -1* /.#d 1#$.! 1#$" 0-th Cir. 1--.1 16. We thin' appellants 4ere entitled to file amended complaints as a matter of right. 7A part& ma& amend his pleading once as a matter of course at an& time before a responsive pleading is servedJ8 0 ule 1*0a1! /ed. . Civ. ,.1 A motion to dismiss is not a 7responsive pleading8 4ithin the meaning of the ule. Ereier v. Northern California Eo4ling . . ,roprietors Ass>n.! $16 /.#d =+= 01-6$1 1=. ,ro se litigant is entitled to an opportunit& to amend the complaint to overcome the deficienc& unless it clearl& appears from the complaint that the deficienc& cannot be overcome b& amendment. Noll v. Carlson! +.- /.#d 1""6 0-th Cir. . . 1--+1

1+. A 5udgment dismissing an action for failure to state a claim is a 5udgment on the merits. United States v. Eechtel Corp.! 6"+ /.#d 66.! 66$ 0-th Cir.1! cert. denied! "*" U.S. 1.+$ 1-. Where the alleged violations of the /ourth and /ifth Amendments! b& defendants formed the sole basis of relief sought! and if the allegations had an& foundation in truth! plaintiff>s legal right had been violated! the court could not dismiss the action for 4ant of 5urisdiction on ground that the cause of action 4as potentl& 4ithout merit. Eell v. Bood! $#= U.S. 6=+ 01-"61 #.. While motion to dismiss for failure to state a claim ma& be treated as motion for summar& 5udgment 4hen evidentiar& materials outside of pleadings are considered! rule dealing 4ith sub5ect matter 5urisdiction contains no similar provision. 0 C/C! ule 1#0b101!"1! #+ U.S.C.A.1 Coo' v. United States! $# /ed. Cl. =+$ 01--*1 #1. 3n considering motion to dismiss for lac' of sub5ect matter 5urisdiction! court must accept as true an& undisputed allegations of fact made b& nonmoving part&. 0 C/C! ule 1#0b1011! #+ U.S.C.A.1; Sam Dra& Enterprises! 3nc. v. United States! $# /ed. Cl. *#6 01--*1 ##. 3f the 9uestion 4hether 5urisdiction lies in federal court is to be decided on the basis of facts contained in the parties> affidavits! ho4ever! the part& 4ho bears the burden need onl& present a prima facie case for personal 5urisdiction; proof b& a preponderance of the evidence is not re9uiredJMoreover! on a motion to dismiss for lac' of 5urisdiction! uncontroverted allegations in the plaintiff>s complaint must be ta'en as true and conflicts bet4een the facts contained in the parties> affidavits must be resolved in the plaintiff>s favor for purposes of determining 4hether a prima facie case for personal 5urisdiction e(ists. Aa'aria v. Safani! ="1 /.Supp. 1#6$ 01--.1 #$. A complaint ma& onl& be dismissed 4hen 7it appears be&ond doubt that the plaintiff can prove no set of facts in support of his claim 4hich 4ould entitle him to relief.8 Conle& v. Dibson! $** U.S. "1! "* 01-*=1

'onta(payer
1. Section ="#10a1 of the 3nternal evenue Code of 1-*" 03. .C.1 states: 7No suit for the purpose of restraining the assessment or collection of an& ta( shall be maintained in an& court b& an& person! 4hether or not such person is the person against 4hom such ta( 4as assessed!8 4ith certain e(ceptions! one of 4hich is a civil action b& a nonta(pa&er 4ho claims that his or her propert& has been the sub5ect of a 4rongful lev&. Bollingshed v. United States! +*C# US?C! -==# 0*th Cir. 1-+*1 #. ?he revenue la4s are a code or s&stem in regulation of ta( assessment and collection. ?he& relate to ta(pa&ers! and not to nonta(pa&ers. ?he latter are 4ithout their scope. No procedure is prescribed for nonta(pa&ers! and no attempt is made to annul an& of their rights and remedies in due course of la4. With them Congress does not assume to deal! and the& are neither of the sub5ect nor of the

ob5ect of the revenue la4s. Long v. asmussen! #+1 /. #$6! #$+; Econom& ,lumbing F Beating v. U.S.! "=. /.#d *+*! *+$. evenue la4s are a code or s&stem in regulation of ta( assessment collection and relate to ta(pa&ers and not to nonCta(pa&ers. Eartell v. iddlell! #.# /.Supp. =. 01-6#1 ". )udicial Code provisions! rather than 3nternal evenue Code provisions! 4ere applicable and 4ould give /ederal <istrict Court 5urisdiction regardless of compliance 4ith 3nternal evenue Code provisions if propert& o4ner 4as a nonta(pa&er. Derth v. United States! 1$# /.Supp. +-" 01-**1 *. ,ersons 4ho are not ta(pa&ers are not 4ithin the s&stem and can obtain no benefit b& follo4ing the procedures prescribed for ta(pa&ers! such as the filing of claims for refundJthere have been man& cases 4here parties have sued to en5oin the assessment or collection of their mone&s to pa& the ta(es of anotherJ the courts have allo4ed these suits because the parties filing the suits 4ere not ta(pa&ers and 4ere outside the revenue s&stem of 4hich the above statute 0#6 U.S.C.! Section $6*$ 01-*# ed.11 is a part. othensies v. Ullman! 11. /.#d *-. 0$rd Cir. 1-".1; affaele v. Dranger! 1-6 /.#d 6#. 0$rd Cir. 1-*#1; Eulloc' v. Latham! $.6 /.#d "* 0#nd Cir. 1

Person
1. Since in common usage! the term 7person8 does not include the sovereign! statutes not emplo&ing the phrase are ordinaril& construed to e(clude it. United States v. /o(! -" U.S. $1* United States v. Deneral Motors Corp.! # /. .<. *#+! *$.

Privacy!Private
1. When 4e as' &ou for information! 4e must first tell &ou several things: our legal right to as' for the information! 4h& 4e are as'ing for it! and ho4 it 4ill be used. We must also tell &ou 4hat could happen if 4e do not receive it and 4hether &our response is voluntar& or mandator& under the la4. 3nternal evenue Service ,rivac& Act Notice 6.#. ?he right of 7privac&8 is the right to be let alone. Dill v. Curtis ,ub. Co.! #$,.#d 6$.! 6$# $. ?he right to 7privac&8 is not absolute. Hone&e v. ?urner! #". S.W.#d *++! *-. ". ?he right of 7privac&8 is the right to be let alone and the right to live one>s life in seclusion! 4ithout being sub5ected to un4arranted and undesired publicit&. Souder v. ,endleton <etective! 3nc.! ++ So.#d =16! =1+ *. 7,rivac&8 is the right of a person to be free from un4arranted publicit& and is a right to live 4ithout un4arranted interference b& the public in matters 4ith 4hich the public is not necessaril& concerned. Souder v. ,endelton <etective! 3nc.! ++ So.#d =16! =1+

6. 7,rivate8 means personal or concerning an individual or peculiar to an individual! it relates to the privac& of an individual. Duardian Savings F ?rust Co. v. Er&ar! #. %hio N.,.! N.S. "1= =. ?he 4ord 7private8 4hen applied to po4ers of municipalit& is used to designate proprietar& as distinguished from governmental functions. @eeter v. ?o4n of La'e Lure! 1"1 S.E.#d 6$"! 6"$ +. Word 7private8 means not of a public nature! unconnected 4ith others. Stoc'ing v. )ohnson /l&ing Service! $+= ,.#d $1#! $1= -. 7,rivate8 is defined as belonging to! or concerning! an individual person! compan&! or interest; one>s o4n; not public; not general. Mitchell v. Dreen! $S.E.#d 6-6! 6-+ 1.. ?he 4ord 7private8 means apart from the state! peculiar to an individual. ./.C. v. /oust <istilling Co.! #." /.#d $"$! $"+ 11. 7,rivate8 relates to individuals as opposed to that 4hich is public or general. Stovall v. Dartrell! $$# S.W.#d #*6! #6. 1#. Statute 4as not 7private8 because applicable onl& to teachers> pensions in cities of first class. State e( rel. ?e4eles v. ,ublic School ?eachers> Annuit& and etirement /und ?rustees of Cit& of Mil4au'ee! #-1 N.W. ==*! === 1$. A 7special> of 7private8 act is one operating onl& on particular persons and private concerns; a 7local act8 is one applicable onl& to a particular part of the legislative 5urisdiction. ?rumper v. School <ist. No. ** of Musselshell Count&! 1=$ ,. -"6! -"= 1". Mr. Webster sa&s that! in general 7public8 e(presses something common to man'ind at large! to a nation! state! cit&! or to4n! and is opposed to 7private!8 4hich denotes that 4hich belongs to an individual! to a famil&! to a compan& or a corporation. Chamberlain v. Cit& of Eurlington! 1- 3o4a $-*! ".# 1*. 7,rivate8 and 7separate8 mean substantiall& the same thing. ?he 4ord 7separate!8 4hen used in a certificate of ac'no4ledgment! imports that the ac'no4ledgment of the grantor 4as ta'en b& a private e(amination. ?imber v. <esparois! 1.1 N.W. +=-! ++1 16. ?he term 7public8 is opposed to the term 7private.8 State v. Whitesides! S.E. 661 1=. 7,ublic!8 is a convertible term! and! 4hen used in an act of assembl&! ma& refer to the 4hole bod& politic Tthat is! all the inhabitants of the state T or to the inhabitants of a particular place onl&J3n its most comprehensive sense! it is the opposite of 7private.8 Bouston ?p. ,oor <ist. v. Een2ette ?p. ,oor <ist.! 1- A. 1.6.! 1.61 1+. ?he phrase 7public and official8 has varied meanings! depending on the conte(t in 4hich it is found. 7,ublic8 ma& be used in contradistinction to 7private!8 or it ma& be the antithesis of 7secret.8 7,ublic8 means of! pertaining to! or affecting the people at large or the communit&! distinguished from 7private8 or

7personal.8 7%fficial8 means of or pertaining to an office or public trust. /arrell v. Ne4 Gor' Evening ,ost! $ N.G.S.#d 1.1+! 1.## 1-. 7,ublic8 referred to communit& generall&! not to different individual members thereof. Areal v. Bome %4ner>s Loan Corporation! "$ N.G.S.#d *$+! *". #.. ?he 7public8 4ithin protection of mail order fraud statute includes the vast multitude of the ignorant! the unthin'ing and the credulous. Dottlieb v. Schaffer! 1"1 /.Supp. =! 16 #1. ?he 4ord 7public8 does not mean ever&bod& all the time but the 4ord must be interpreted in each case according to use and intent. Eennetts! 3nc. v. Carpenter! 1$= ,.#d =+.! =+1 ##. ?he term 7public8 and 7general8 are sometimes used as s&non&mous! meaning merel& that 4hich concerns a multitude of persons. Stoc'ton v. Williams! 1 <oug. *"6! *=.! citing Dreenl.Ev. 1*# #$. ?he 4ord 7municipal!8 as originall& used in its strictness! applied to cities onl&! but it no4 has a much more e(tended meaning! and! 4hen applied to corporations! the 4ords 7municipal!8 7political!8 and 7public8 are used interchangeabl&. Curr& v. <istrict ?p. %f Siou( Cit&! 1= N.W. 1-1 #". ?he la4 of unfair competition is not made for the protection of e(perts! but the 7public!8 4hich includes the ignorant! unthin'ing! and the credulous! 4ho in ma'ing purchases are governed b& appearances and general impressions. ).N.Collins Co. v. /.M. ,aist Co.! 1" /.#d 61"! 61* #*. A nuisance is 7public8 4hen it affects rights to 4hich ever& citi2en is entitled! even though it in fact affects onl& a small fraction of the people of the state. State v. )acob E. <ec'er F Sons! 1-1 N.W. $*-! $61 #6. A 7nuisance8 ma& be an&thing 4hich essentiall& interferes 4ith the en5o&ment of life or propert&! and a nuisance is 7public8 4hen it affects the rights to 4hich ever& citi2en is entitled. Murden v. Commissioners of ?o4n of Le4es! -6 A. *.6! *.= #=. Neither a to4n nor its officers have an& right to appropriate or interfere 4ith private propert&. Mitchell v. Cit& of oc'land! "* Me. "-6

Pro )e
1. ?he pleading of one 4ho pleads pro se for the protection of civil rights should be liberall& construed. Elood v. Margis! $## /. 1.+6 #. ,ro se petitioners arguments must be liberall& construed on appeal. U.S. v. Eatinger! -.# /.#d 1$+$ $. When dismissal of pro se complaint is 4arranted! it should generall& be 4ithout pre5udice to afford plaintiff opportunit& to file an amended complaint. Dood v. Allain! +#$ /.#d 6" 0*th Cir. 1-+=1

". ?o insure that pro se complaints are given fair and meaningful consideration! the& are liberall& construed ho4ever inartfull& pleaded. ?alle& v. Lane! 1$ /.#d 1.$1 0=th Cir. 1--"1 *. ,ro se litigants pleadings are to be construed liberall& and held to less stringent standard than formal pleadings drafted b& la4&ers; if court can reasonabl& read pleadings to state valid claim on 4hich litigant could prevail! it should do so despite failure to cite proper legal authorit&! confusion of legal theories! poor s&nta( and sentence construction! or litigant>s unfamiliarit& 4ith pleading re9uirements. Simmons v. Abru22o! "- /.$d +$ 0#nd Cir. 1--*1; /erran v. ?o4n of Nassau! 11 /.$d #1 0#nd Cir. 1--$1; Eoag v. Mac<ougall! "*" U.S. $6" 01-+#1; Baines v. @erner! "." U.S. *1- 01-=#1 6. ,ro Se pleadings are held to less stringent pleading re9uirements! and that technical rigor in the e(amination of such pleadings is inappropriate. Cameron v. 3. .S.! *-$ /.Supp. 1*". 01-+"1 =. 3n revie4ing pro se complaint! Court of Appeals must emplo& standards less stringent than if complaint 4as drafted b& counsel. Ea'er v. Cuomo! *+ /.$d +1" 0#nd Cir. 1--*1; Curtis v. Eembene'! "+ /.$d #+1 0=th Cir. 1--*1 +. ,ro se petitioners arguments must be liberall& construed on appeal. Woods v. ?hieret! -.$ /.#d 1.+. 0=th Cir. 1--.1 -. ,lats'& v. C3A -*$ /.#d.#*! Court errs if court dismisses the pro se litigant 4ithout instructions of ho4 pleadings are deficient and ho4 to repair pleadings. 1.. Erec' v. Ulmer! Kthe trial 5udge should inform a pro se litigant of the proper procedure for the action he or she is obviousl& attempting to accomplish.K

$egistered %ail
1. 3f an& such claim! statement! or other document is sent b& United States registered mail! such registration shall be prima facie evidence that the claim! statement! or other document 4as delivered to the agenc&! office! or officer to 4hich addressed! and the date of registration shall be deemed the postmar' date. ,ublic La4 +*C+66! Section +-!0a1011

$elief
1. ?he Seventh Circuit Court of Appeals has held that a public official does not have immunit& simpl& because he operates in a discretionar& manner. 3t indicated that public servants are to held liable 4hen the& abused their discretion or acted in a 4a& that 4as arbitrar&! fanciful or clearl& unreasonable. Littelton v. Eerling! "6+ /#d $+- 0C.A. = 3ll 1-=#1 #. As long as information contained in agenc&>s files is capable of being verified! then! under ,rivac& Act! agenc& must ta'e reasonable steps to maintain accurac& of information to assure fairness to individual and! if agenc& 4illfull& or intentionall& fails to maintain its records in that 4a&! and conse9uentl& ma'es

determination adverse to individual! it 4ill be liable to that person for mone& damages. Sellers v. Eureau of ,risons! -*- /#d $.= 0<C Cir. 1--#1 $. ,unitive damages are appropriate in cases of rec'less or callous disregard for plaintiff>s rights or intentional violations of federal la4. U.S. v. Ealistrieri! -+1 /#d -16 0=th Cir. 1--#1 ". Word 7damages8 is commonl& understood to connote pa&ment in mone& for plaintiff>s losses caused b& defendant>s breach of dut&. Driffith v. State %f Colo.! <iv. %f Gouth Services! 1= /$d 1$#$ 01.th Cir. 1--"1 *. Compensator& damages serve to compensate for harm sustained b& part&. <eisler v. McCormac' Aggregates! Co.! *" /$d 1.=" 0$rd Cir. 1--*1 6. 3nnocent mista'e is a defense to both a criminal and civil complaint C so is mere negligence. U.S. v. Chee'! ++# /#d 1#6$ 0=th Cir. 1-+-1 =. /ederal courts have the po4er to order e(pungement of government records 4here necessar& to vindicate rights secured b& Constitution or b& statute. U.S. v. ,into! 1 /$d 1.6- 01.th Cir. 1--$1 +. Admission of ,rocedural Hiolations e9uires elief because the federal defendants have admitted! in ever& instance claimed b& this Aggrieved Citi2en! that the& did not follo4 proper procedures. ?he& have admitted! though JJJ. ?hat ever& fact alleged or necessaril& inferred in the complaint is true. ?odaro v. %rbit 3nt>l. ?ravel! Ltd.! =** /.Supp. 1##-; Mitchell v. @ing! *$= /.#d $+*; /it2'e v. Shappell! "6+ /.#d 1.=# -. Single violation of /air <ebt Collection ,ractices Act 0/<C,A1 provision prohibiting debt collector from using an& false! deceptive or misleading representations is sufficient to establish civil liabilit& under /<C,A. Clomon v. )ac'son! --+ /.#d 1$1" 0#nd Cir. 1--$1 1.. ,unitive damages are in5uries and sufferings that 4ere intended! or occurred through malice! carelesssness or negligence amounting to a 4rong so rec'less and 4anton as to be 4ithout e(cuse. oss v. Leggett! #+ N.W. 6-*! 6-= 11. %ne 4ho unintentionall& fails to perform a dut& should pa& compensator& damages onl&. %ne 4ho maliciousl& infringes another>s legal rights should pa& both compensator& and punitive damages. Western Union ?el. Co. v. /erguson! 6. N.E. 6=" 01-.11 1#. ?hat public officers should be held to the faithful performance of their official duties! and made to ans4er in damages to all persons 4ho ma& have been in5ured through their malfeasance! omission! or neglect! to 4hich the persons in5ured have in no respect contributed! cannot be denied. Lic' v. Madden! $6 Cal. #.+; /irst Nat>l. Ean' %f @e& West v. B.B. /iler! += AL #6= 1$. 3t is 4ell settled that! 4here the la4 imposes upon a public officer the performance of ministerial duties in 4hich a private individual has a special and direct interest! the officer 4ill become liable to such individual for an& in5ur& 4hich he ma& pro(imatel& sustain in conse9uence of the failure or neglect of the officer either to perform the dut& at all! or to perform it properl&. 3n such case the officer

is liable as 4ell for nonfeasance as for misfeasance or malfeasance. /irst Nat>l. Ean' of @e& West v. B.B. /iler! += AL #6= 1". ?hat the individual 4ho considers himself in5ured! has a right to resort to the la4s of his countr& for a remed&. Marbur& v. Madison! 1 Cranch 1$= 1*. When a government agent acts in an unconstitutional manner! he becomes personall& liable for mone& damages. Eivens v. Si( Un'no4n Agents! ".$ U.S. $++ 16. ,unitive damages are appropriate in cases of rec'less or callous disregard for plaintiff>s rights or intentional violations of federal la4. U.S. v. Ealistrieri! -+1 /.#d -16 0=th Cir. 1--#1 1=. Compensator& damages serve to compensate for harm sustained b& part&. <eisler v. McCormic' Aggregates Co.! *" /.$d 1.=" 0$rd Cir. 1--*1 1+. ,unitive damages ma& not be so high as to shoc' 5udicial conscience. ?ingle& S&stems! 3nc. v. Norse S&stems! 3nc.! "- /.$d -$ 0#nd Cir. 1--*1 1-. 73n5ur&8 4ithin constitutional section providing that ever& person! for an in5ur& done him in his land! goods! person or reputation! shall have a remed& b& due process of la4 is damage resulting from breach of a legal dut&. andle v. ,a&ne! 1.= So.#d -.=! -11 #.. Constitutional guarantee insuring a remed& for 7in5uries8 to person! propert&! or character does not guarantee a remed& for ever& species of in5ur&! but onl& such as results from invasion or infringement of a legal right or a failure to discharge a legal dut&. Scholberg v. 3tn&re! *+ N.W.#d 6-+! 6-#1. emed& is defined as the means emplo&ed to enforce a right or redress an in5ur&. ,aulsen v. einec'e! 1+1 La. -1=; -= AL 11+" ##. Ever& person is entitled to a certain remed& in the la4s for all in5uries or 4rongs 4hich he ma& receive in his person! propert& or character; these 4ords 4ere not inserted in the constitution as a matter of idle ceremon&! or as a string of glittering generalities. hodes v. Walsh! *= N.W. #1#! #1$ #$. edress for constitutional in5uries cannot be provided 4ithout evidence that in5uries 4ere caused b& federal agents acting 4ithin parameters of his authorit&. %tto v. Bec'ler! =+1 /.#d =*" #". ?he obligation to do 5ustice rests upon all persons! natural and artificial! if one obtains the mone& or propert& of others 4ithout authorit&! the la4! independentl& of e(press contract! 4ill compel restitution or compensation. an'in v. Emigh! #1+ U.S. #= #*. /ederal courts ma& e(ercise there supervisor& po4ers over grand 5uries to remed& violations of recogni2ed rights! protect integrit& of federal courts! and deter illegal conduct b& government officials. U.S. v. <iEernado! =** /.#d 1"=. 011th Cir. 1-+*1 #6. 3f see'ing onl& monetar& damages under Eivens! e(haustion is not re9uired. L&ons v. U.S. Marshals! +". /.#d #.# 0$rd Cir. 1-++1

#=. 3f administrative remedies are pursued! the citi2en ma& 4in complete relief 4ithout needlessl& invo'ing 5udicial processJWe ought not to encourage litigants to b&pass simple! ine(pensive and e(peditious remedies available at their doorstep in order to invo'e e(pensive 5udicial machiner& on matters capable of being resolved at local levels. Moore v. East Cleveland! "$1 U.S. "-"! *#* 01-=61 #+. Court of Appeals ma& revie4 a ruling motion for abuse of discretion. Wages v. 3. .S.! -1* /.#d 1#$. 0-th Cir. 1--.1 #-. /ederal courts 4ill discharge their dut& to protect constitutional rights. ,rocunier v. Martine2! "16 U.S. $-6 $.. Courts 4ill intervene to prevent an abuse of discretion. ,eople e( rel. Dhent v. Cleveland! C.C. F St. L. . Co.! 6 N.E.#d +*1; 11. A.L. . 11$1. %ne 4ho unintentionall& fails to perform a dut& should pa& compensator& damages onl&! but one 4ho maliciousl& infringes another>s legal rights should pa& both compensator& and punitive damages. Western Union ?el. Co. v. /erguson! 6. N.E. 6=" 01-.11 $#. 3rreparable harm 4ould rest upon plaintiffs sho4ing that their constitutional rights have been violated; violation of a constitutional right is irreparable harm! even for minimal periods of time; one 4ho sho4s deprivation of a constitutional right need go no further in sho4ing the re9uisite harm for in5unctive relief. Bill v. Dreen Count& School <istrict! +"+ /.Supp. 6-= 0S.<. Miss. 1--"1 $$. elief b& 4a& of in5unction should be granted 4here an internal revenue officer! 4ithout notice! has underta'en to assess a penalt& for an alleged criminal act! and threatens to enforce pa&ment b& sei2ure and sale of propert& 4ithout an opportunit& for a hearing of an& 'ind. Lip'e v. @ederer! #*- U.S. **= $". An action in a court of the United States see'ing relief other than mone& damages and stating a claim that an agenc& or an& officer or emplo&ee thereof acted or failed to act in an official capacit& or under color of legal authorit& shall not be dismissed nor relief therein denied on the ground that it is against the United States or that the United States is an indispensable part&. Eeller v. Middendorf! 6$# /.#d =++ 01-+.1 $*. elief T / C,; ule +0a1 must contain three things: A short and plain statement of courts 5urisdiction; A short and plain statement of claim that pleader is entitled to relief; A demand for 5udgment for the relief pleader see's. elief in the alternate or of several different t&pes ma& be demanded. #6. ,rovides damage remed& for violations of the /ourth Amendment b& internal revenue agents. D.M. Leasing Corp. v. United States! "#- U.S. $$+! $6.; Capo22oli v. ?race&! 66$ /.#d 6*"! 6*6 $=. 3nternal evenue Service agents do not have absolute immunit& from liabilit& for damages arising out of performance of their duties; agents are immune onl& if

the& act in good faith! i.e.! 4ith reason to believe that the& are acting la4full&. Cameron v. 3. .S.! ==$ /.#d 1#6! 1#= 01-+*1 $+. Henue statute 0#+ U.S.C.A! Section 1$-11 designed to permit action 4hich is essentiall& against United States to be brought locall& rather than in <istrict of Columbia as 4ould normall& be re9uired if Washington! <.C.! is official residence of agenc& sued onl& applies to actions in 4hich defendant is officer or emplo&ee of United States or an& agenc& thereof acting in his official capacit& or under color of legal authorit&; it does not appl& to actions for mone& damages brought against federal officials in their individual capacities. Dilbert v. <aDrossa! =*6 /.#d 1"**! 1"*= 01-+*1 $-. Section 1$-10e1 onl& applies to actions in 4hich the defendant is an officer or emplo&ee of the United States or an& agenc& thereof acting in his official capacit& or under color of legal authorit&. Stafford v. Eriggs! """ U.S. *#= ".. 3t has long been the rule that the bar of sovereign immunit& cannot be avoided b& naming officers and emplo&ees of the Untied States as defendants. Larson v. <omestic F /oreign Commerce Corp.! $$= U.S. 6+#! 6++ "1. /or a breach of its contract b& a State! no remed& is provided b& the Constitution of the United States against the State itself. Antoni v. Dreenho4! 1.= U.S. =+$ "#. ?o ta'e a4a& all remed& for the enforcement of a right is to ta'e a4a& the right itself. Eut that is not in the po4er of the State. Siebert v. Le4is! 1## U.S. #+"! #-* "$. 3mmunit& from suit is a high attribute of sovereignt& a prerogative of the State itself 4hich cannot be availed of b& public agents 4hen sued for their o4n torts. ?he 11th Amendment 4as not intended to afford them freedom from liabilit& in an& case 4here! under color of their office! the& have in5ured one of the State>s citi2ens. ?o grant them immunit& 4ould be to create a privileged class free from liabilit& from 4rongs inflicted or in5uries threatened. ,ublic agents must be liable to the la4! unless the& are to be put above the la4. Bop'ins v. Clemson Agri. College! ##1 U.S. 6$6; %ld Colon& ?rust Co. v. Seattle! #=1 U.S. "#= "". A suit against a municipal corporation is not a suit against 7one of the United States8 4ithin the meaning of this amendment 0Eleventh Amendment1. ?hat such a corporation is the agent of the state government is undoubtedl& true! but it does not follo4 therefrom that a suit against it or its officers is such a suit. Camden 3nterstate .Co. v. Catlettsburg! 1#- /ed. ep. "## 01-."1 "*. ?he Eleventh Amendment of the Constitution of the United States is limited to those suits in 4hich a state is a part& on the record! and does not prohibit suits against counties. Lincoln Count& v. Luning! 1$$ U.S. *$. 01+#11 "6. E(haustion of administrative remedies is not re9uired 4hen plaintiffs raise constitutional 9uestion and irreparable in5ur& 4ill occur 4ithout preliminar& 5udicial relief. Able v. United States! +"= /.Supp. 1.$+ 01--"1

"=. An& right to monetar& relief against the government must be grounded in contract! statute! or the Constitution. <etroit 3nternational Eridge Compan& v. United States! $# /ed. Cl. ##* 01--"1 "+. ?he Claims Court>s decision to dismiss a complaint for lac' of 5urisdiction is a 9uestion of la4 sub5ect to complete and independent revie4 b& this court. Shearin v. United States! --# /.#d 11-* 0/ed. Cir. 1--$1 "-. ,unitive damages are in5uries and sufferings that 4ere intended! or occurred through malice! carelessness or negligence amounting to a 4rong so rec'less and 4anton as to be 4ithout e(cuse. oss v. Leggett! #+ N.W. 6-*! 6-= 01++61 *.. ?he rule laid do4n in the Si( Carpenter>s case! + Co'e 1"6! that if a man abuses an authorit& given him b& the la4 he becomes a trespasser ab initio! has never been 9uestioned. Eass v. State! -# N.G.S.#d "# 01-"-1 *1. When one fails to perform part of his dut& and it impinges upon the rights of a citi2en! he is said to be a trespasser from the beginning because his 4hole 5ustification fails! and he stands as if he never had an& authorit& at all to act. Eroc' v. Stimson! 1.+ Mass. *#. 01+=11; Befler v. Bunt! 11# A. 6=*! 6=6 01-#11 *#. %ne 4ho interferes 4ith another>s libert& does so at his peril. @roger v. ,assmore! -$ ,. +.*! +.= 01-.+1; McEeath v. Campbell! 1# S.W.#d 11+! 1## 01-#-1 E(ample of damages or in5uries sustained because of unla4ful acts: Eodil& pain! great ph&sical inconvenience and discomfort! loss of time! mental suffering! in5ur& to reputation! distress! and anguish! humiliation of mind! embarrassment! shame! public ridicule! invidious publicit&! and public disgrace.

$ights
1. J.the assertion of federal rights! 4hen plainl& and reasonabl& made! is not to be defeated under the name of local practice. <avis v. Wechsler! #6$ U.S. ##! #" #. %pportunit& to 9uestion 4itness is matter of right. )ohnson v. U.S.! "1+ A#d 1$6 $. ,erson 4ho sees a crime being committed has no legal dut& to either stop it or report it. U.S. v. Aimmerman! -"$ /#d 1#." 01.th Cir. 1--11 ". Leave to amend pleadings should be liberall& granted unless other parties to suit 4ould be pre5udiced. <ale v. Weller! -*6 /#d +1$ 0+th Cir. 1--#1 *. ight to fair trial is basic re9uirement of due process and includes right of unbaised 5udge. Baupt v. <illard! 1= /$d #+* 0-th Cir. 1--"1 6. ,erson is not criminall& responsible unless criminal intent accompanies 4rongful act. Dasho v. U.S.! $- /$d 1"#. 0-th Cir. 1--"1 =. ?he fundamental ma(ims of a free government seem to re9uire! that the rights of personal libert& and private propert& should be held sacred. Wil'inson v. Leland! #= U.S. 6#=

+. /ailure to adhere to agenc& regulations ma& amount to denial of due process if regulations are re9uired b& constitution or statute. Curle& v. United States! =-1 /.Supp. *# -. An individual 4ho is engaged in la4ful! innocent and harmless activities for la4ful compensation is not sub5ect to an& income or revenue ta(. All Americans b& nature are free and independent and have inalienable rights. Among these are en5o&ing and defending life and libert&; ac9uiring! possessing! and protecting propert&. 3ncluded in the right of personal libert& and right of private propert& is the right to ma'e contracts for the ac9uisition of propert&. Chief among such contracts is that of personal emplo&ment! b& 4hich labor and other services are e(changed for mone& or other forms of propert&. Coppage v. @ansas! #$6 U.S. 1! 1" 1.. All household goods o4ned b& the user thereof and used solel& for noncommercial purposes shall be e(empt from ta(ation! and such person entitled to such e(emption shall not be re9uired to ta'e an& affirmative action to receive the benefit of such e(emption. Article -! Section #! ,ara 0"1 Constitution of Ari2ona <epriving one of propert& 4ithout 5ust compensation is a denial of due process of la4. Boffman v. Stevens! 1== /.Supp. +.+ 01-*-1 11. ?a( protester>s /irst Amendment right to petition for redress of grievances 4as violated 4hen she 4as charged 4ith corruptl& endeavoring to intimidate and impede 3 S agents b& filing factuall& accurate! nonCfraudulent criminal trespass complaints against agents after the& entered upon protester>s propert& in total disregard of 7no trespassing8 signs and protester>s previous letters re9uesting that her privac& rights be respected. United States v. B&lton! =1. /.#d 11.6 1#. ,rivate o4nership of propert& and its en5o&ment secure from arbitrar& governmental interference are cherished! fundamental concepts! and are t4o of the features distinguishing this societ& from those 4ith oppressive governments. Eoth'e v. /luor Engineers and Constructors! 3nc.! =1$ /.#d 1"1$ 01-+$1 1$. ?here should be no arbitrar& deprivation of life or libert&! or arbitrar& spoilation of propert&. Earber v. Connoll&! 11$ U.S. #=! $1 1". ?he due process clause of the /ifth Amendment guarantees to each citi2en the e9ual protection of the la4s and prohibits a denial thereof b& an& /ederal official. Eolling v. Sharpe! $#= U.S. "-= 1*. <ue process clause not onl& applies 4hen one>s ph&sical libert& is threatened but also 4here a person>s good name! reputation! honor or integrit& are at sta'e. Dot'in v. Miller! *1" /.#d 1#* 01-=*1 16. ?he essential elements of due process of la4 are notice and opportunit& to defend. Simon v. Croft! 1+# U.S. "#= 1=. An&thing that is a right cannot be sub5ect to conditions or licensing. Lane v. Wilson! $.= U.S. #6+! #=* 1+. No e(cise ta( ma& be imposed upon a right secured b& the Constitution. Drosican v. American ,ress Co.! #-= U.S. #$$ 01-$61

1-. Waivers of constitutional rights not onl& must be voluntar&! the& must be 'no4ingl& intelligent acts done 4ith sufficient a4areness of the relevant circumstances and conse9uences. Erad& v. U.S.! $-= U.S. ="#! ="+ #.. Constitutional right of access to courts applies to civil as 4ell as constitutional claims. )ac'son v. ,rocunier! =+- /.#d $.= 01-+61 #1. Where rights secured b& the Constitution are involved! there can be no rule ma'ing or legislation 4hich 4ould abrogate them. Miranda v. Ari2ona! $"+ U.S. "$6! "-1 ##. 3t is the dut& of courts to be 4atchful for the constitutional rights of the citi2en! and against an& stealth& encroachments thereon. Eo&d v. United States! 116 U.S. 616 #$. /ederal government is al4a&s charged 4ith dut& of protecting rights and propert& of its citi2ens. U.S. v. ,etersen! -1 /.Supp. #.-! affirmed 1-1 /.#d 1*"! certiorari denied =# S.Ct. 1="! $"# U.S. ++* #". An in5ur& is 7irreparable8 onl& if it cannot be undone through monetar& remedies! and that the right to privac& must be carefull& guarded for once an infringement has occurred it cannot be undone b& monetar& relief. <eerfield Medical Center v. Cit& of <eerfield Eeach! 661 /.#d $#+ 01-+11 #*. We have alread& determined that the constitutional right to privac& is 7either threatened or in fact being impaired8! and this conclusion mandates a finding of irreparable in5ur&. Elrod v. Eurns! "#= U.S. S $=$ #6. ?he constitutional provisions that no person shall be deprived of life! libert&! or propert& 4ithout due process of la4! nor private propert& ta'en for public use 4ithout 5ust compensation! are intended as limitations upon the po4er of the government in its dealings 4ith the citi2en! and relate to that class of rights 4hose protection is peculiarl& 4ithin the province of the 5udicial branch of government! and that the courts are bound to give remed& for unla4ful invasion of rights of propert& b& officers of an& branch of government. United States v. Lee! 1.6 U.S. 1-6 01++#1 #=. ?he Citi2en 'no4s no person! ho4ever near to those in po4er! or ho4ever po4erful himself! to 4hom he need &ield the rights 4hich the la4 secures to him 4hen it is 4ell administered. When he! in one of the courts of competent 5urisdiction! has established his right to propert&! there is no reason 4h& deference to an& person! natural or artificial! not even the United States! should prevent him from using the means 4hich the la4 gives him for the protection and enforcement of that right. United States v. Lee! 1.6 U.S. 1-6 01++#1 #+. )udge must be fair to all parties and ma& not do or sa& an&thing that might pre5udice either litigant. U.S. v. ,rice! 1$ /.$d =11 0$rd Cir. 1--"1 #-. ight to a fair trial is basic re9uirement of due process and includes the right of unbiased 5udge. Baupt v. <illard! 1= /.$d #+* $.. ,erson is not criminall& responsible unless criminal intent accompanies 4rongful act. Dasho v. U.S.! $- f.$< 1"#. 0-?B Cir. 1--"1

$1. Where propert& or rights are en5o&ed under a grant or contract made b& a State! the& cannot 4antonl& be invaded. Whilst the State cannot be compelled b& suit to perform its contracts! an& attempt on its part to violate propert& or rights ac9uired under its contracts! ma& be 5udiciall& resisted; and an& la4 impairing the obligation of contracts under 4hich such propert& or rights are held is void and po4erless to affect their en5o&ment. Bans v. State of Louisiana! 1$" U.S. 1! #1 $#. ?he pubic is entitled to be informed as to the procedures and practices of a governmental agenc&! so as to be able to govern their actions accordingl&. Eerends v. Eut2! $*= /.Supp. 1"$ 01-=$1 $$. Neither the state nor the municipalit&! 4hich is an arm of the state! can deprive an& person of life! libert&! or propert& 4ithout due process of la4. Wilson v. Aanesville! 1$ %hio St. #+6; 1-- N.E. 1+= $". ?he general rule is that parties ma& rel& onl& on constitutional rights 4hich are personal to themselves. National Welfare ights %rgani2ation v. W&man! $." /.Supp. 1$"6 01-6-1 $*. ?he provisions in the fifth amendment to the Constitution of the United States! declaring that private propert& shall not be ta'en for public use 4ithout 5ust compensation! is intended solel& as a limitation on the e(ercise of po4er b& the government of the United States! and is not applicable to the legislation of the States. 0/ourteenth Amendment is1 Earron v. Ma&or and Cit& Council of Cit& of Ealtimore! $# U.S. #"$ 01+$$1 $6. ?he propert& 4hich ever& man has is his o4n labor! as it is the original foundation of all other propert&! so it is the most sacred and inviolable. ?he patrimon& of the poor man lies in the strength and de(terit& of his o4n hands! and to hinder his emplo&ing this strength and de(terit& in 4hat manner he thin's proper! 4ithout in5ur& to his neighbor! is a plain violation of this most sacred propert&. Eutchers> Union Co. v. Crescent Cit&! 111 U.S. ="6 01++"1 $=. E(haustion of administrative remedies is not re9uired 4hen plaintiffs raise constitutional 9uestion and irreparable in5ur& 4ill occur 4ithout preliminar& 5udicial relief. Able v. United States! +"= /.Supp. 1.$+ 01--"1

)eizure
1. /ailure to secure a valid court order must be punishable for those conducting a search or sei2ure 4ithout it! if the rights of the /ourth Amendment of the U.S. Constitution are to be maintained. 3f no penalt& 4ill be ever attached to a failure to see' a 4arrant! as distinguished from the officer ma'ing their o4n! correct! determination of probable cause! 4arrants 4ill never be sought. U.S. v. Mason! #-. /.Supp. +"$ 01-6+1 #. When the right of privac& must be reasonabl& &ielded to the right of search! is as a rule! to be decided b& a 5udicial officer! not b& a policeman or government enforcement agent. )ohnson v. U.S.! $$$ U.S. 1.!1"

$. 3t is a cardinal rule that! in sei2ing goods and articles! la4 enforcement agents must secure and use search 4arrants 4henever reasonable practicableJto provide the necessar& securit& against unreasonable intrusions upon the private lives of individuals! the framers of the /ourth Amendment re9uired adherence to 5udicial processes 4herever possible! and subse9uent histor& has confirmed the 4isdom of that re9uirement. ?rupiano v. U.S.! $$" U.S. =.* ". /or a lev& to be statutoril& authori2ed in the circumstances here! t4o conditions must be fulfilled. /irst! a 1. da& notice of intent to lev& must have issued. 0See #6 USC! Section 6$$10a11. Second! the ta(pa&er must be liable for the ta(. 3d. ?a( liabilit& is a condition precedent to the demand. Merel& demanding pa&ment! even repeatedl&! does not cause liabilit&. Eoth'e v. /luor Engineers and Constructors! 3nc.! =1$ /.#d 1"1" 01-+$1 *. /or the condition precedent of liabilit& to be met! there must be a la4ful assessment! either a voluntar& one b& the ta(pa&er! or one procedurall& proper b& the 3 S. Eecause this countr&>s ta( s&stem is based on voluntar& selfC assessment! rather than distraint. /lora v. United States! $6# U.S. 1"*! 1=6 01-6.1 6. ?he Constitution protects individuals against invasion of their privac& b& the government. Whalen v. oe! "#- U.S. *+- 01-==1 =. %ne claiming /ourth Amendment violation must sho4 that he had a legitimate e(pectation of privac& and that the e(pectation 4as invaded b& government action. U.S. v. Welliver! -=6 /#d 11"+ 0+th Cir. 1--#1 +. /ifth Amendment due process clause held to generall& prohibit federal government from sei2ing real propert& in civil forfeiture 4ithout prior notice and hearing. U.S. v. Dood eal ,ropert&! 1#6 LEd#d "-. 01--$1 -. La4 of trespass forbids intrusions onto land that /ourth Amendment 4ould not proscribe. U.S. v. Ball! "= /$d 1.-1 011th Cir. 1--*1 1.. United States cannot ta'e propert& from an innocent spouse to satisf& ta( obligation of delin9uent spouse. affaele v. Dranger! 1-6 /.#d 6#. 0$rd. Cir. 1-*#1 11. A ta( penalt& must be properl& assessed and the ta(pa&er properl& noticed before the penalt& is enforceable. Stallard v. United States! +.6 /.Supp. 1*# 01--#1 1#. A 5udicial 4arrant for ta( levies 4as necessar& to protect against un5ustified intrusions into privac&Jforcible entr& b& 3 S officials onto private premises 4ithout prior 5udicial authori2ation is an invasion of privac&. D.M. Leasing Corp. v. United States! "#- U.S. $$+ 01-==1 1$. ?here is no general po4er in the federal government to sei2e private propert&. Schneider v. <istrict of Columbia! 11= /.Supp. =.*! modified Eerman v. ,ar'er! $"+ U.S. #6 1". ?here should be no arbitrar& deprivation of life or libert&! or arbitrar& spoilation of propert&. Earber v. Connoll&! 11$ U.S. #=! $1

1*. 3nternal evenue Service! 4ith its e(pertise! is obliged to 'no4 its o4n government statutes and to appl& them realisticall&. Eoth'e v. /luor Engineers F Const.! et al.! =1$ /.#d 1".* 01-+$1 16. /ederal government agencies are obliged to conform to their o4n regulator& standards. Laningham v. U.S.! # Cl. Ct. *$* 1=. We find it hard to imagine a case 4here the Dovernment can ta'e a citi2en>s mone&! b& refusing him something to 4hich he is entitled! and then 'eep the mone& on the ground of estoppel; this defense is beneath the dignit& of the Dovernment. Clapp v. United States! 11= /.Supp. *=6 01-*"1 cert. denied! $"+ U.S. +$" 01-*"1 1+. 3t is a 4ell established rule that a consent search is unreasonable under the /ourth Amendment if the consent 4as induced b& the deceit! tric'er& or misrepresentation of the 3nternal evenue Agent. United States v. othstein! *$. /.#d 1#=* 0*th Cir. 1-=61; United States v. <a4son! "+6 /.#d 1$#6 0*th Cir. 1-=$1 1-. A 7lev&8 re9uires that propert& be brought into legal custod& through sei2ure! actual or constructive! lev& being an absolute appropriation in la4 of the propert& levied on! and mere notice is insufficient. United States v. %><ell! 16. /.#d $." #.. ?he method for accomplishing a lev& on a ban' account is the issuing of 4arrants of distraint! the ma'ing of the ban' a part&! and the serving 4ith notice of lev&! cop& of the 4arrants of distraint! and notice of lien. United States v. %><ell! 16. /.#d $." #1. Section $6-# does not prescribe an& procedure for accomplishing a lev& upon a ban' account. ?he method follo4ed in the cases is that of issuing 4arrants of distraint! ma'ing the ban' a part&! and serving 4ith the notice of lev& cop& of the 4arrants of distraint and notice of lien. Common4ealth Ean' v. United States! 11* /.#d $#=: United States v. Ean' of United States! * /.Supp. -"#! -"" ##. ?a(pa&ers do not have a constitutional right to a preClev& hearing. ,hillips v. Commissioner! #+$ U.S. *+-! *-$C6.1 #$. We previousl& held that a statutor& provision enabling a ta(pa&er to challenge an assessment after it has been levied satisfies the dictates of due process. ?odd v. United States! +"- /.#d $6*! $6#". A 7sei2ure8 of propert&! occurs 4hen there is some meaningful interference 4ith an individual>s possessor& interests in that propert&. United States v. )acobsen! "66 U.S. 1.-! 11$ #*. E(traCofficial or casual notice! or a hearing granted as a matter of favor or discretion in proceedings for the ta'ing of one>s propert& to satisf& his alleged debt or obligation! is not a substantial substitute for the due process of la4 4hich U.S. Const.! 1"th Amend.! re9uires. Coe v. Armour /ertili2er Wor's! #$= U.S. "1$ 01-1*1

#6. As bet4een ta(pa&er and the Dovernment! sei2ure and sale of ta(pa&er>s propert& for delin9uent pa&roll ta(es 4as invalid 4here the Dovernment did not provide notice b& personal service or leaving 4ritten notice at usual place of abode! as re9uired b& statute! even though notice 4as served b& certified mail and ta(pa&er had actual noticeJ.4hen the government see's to enforce the la4s! it must follo4 the steps 4hich Congress has specified. Dood4in v. United States! -$* /.#d 1.61 0-th Cir. 1--11 #=. Ever& ac9uisition! holding! or disposition of the propert& b& the /ederal Dovernment depends upon proper e(ercise of the constitutional grant of po4er. Mesta Machine Compan& v. Count& of Alleghen&! ,enns&lvania! $## U.S. 1="! 1-+ #+. A husband>s preCmarital ta( liabilit& could be enforced b& lien on his interest in communit& propert&! but not his 4ife>s interest in that propert&. <raper v. United States! #"$ /.Supp. *6$ 0Wash. 1-6*1 #-. E(cept in certain carefull& defined classes of cases! a search of private propert& 4ithout proper consent is 7unreasonable8 unless it has been authori2ed b& a valid search 4arrant. Camara v. Municipal Court! $+= U.S. *#$! *#+ $.. ?he fourth amendment protects t4o t&pes of e(pectations! one involving 7searches8 and the other 7sei2ures.8 A search occurs 4hen an e(pectation of privac& that societ& is prepared to consider reasonable is infringed. A sei2ure occurs 4here there is some meaningful interference 4ith an individual>s possessor& interests in that propert&. Borton v. California! "-6 U.S. 1#+ $1. We do not agree 4ith this 0=th Circuit Court>s1 interpretation of the "th Amendment. ?he Amendment protects the people from unreasonable searches and sei2ures of their persons! house! papers! and effect. ?his language surel& cuts against the novel holding above! and our cases unmista'abl& hold that the Amendment protects propert& as 4ell as privac&. Soldal et u. v. Coo' Count&! 3llinois! et al.! 11$ S.Ct. *$+ 01--#1 $#. When the government sei2es propert& not to preserve evidence of criminal 4rongdoing! but to assert o4nership and control over the propert&! its action must also compl& 4ith the <ue ,rocess Clause. /uentes v. Shevin! ".= U.S. 6=

)i(teenth Amendment
1. ?he Si(teenth Amendment does not purport to confer po4er to lev& income ta(es in a generic sense! as that authorit& 4as alread& possessed! or to limit and distinguished bet4een one 'ind of income ta( and another; but its purpose is to relieve all income ta(es 4hen imposed from apportionment and from consideration of the source 4hence the income is derived. Erushaber v. Union ,acific ailroad Compan&! #". U.S. 1 #. ?he source of the ta(ing po4er is not the 16th Amendment! it is Article 3! Section +! of the Constitution. ,enn. Mutual 3ndemnit& Co. v. Commissioner! $# ?.C. 01-*-1! CCB at page 6*-

E(plains 4h& the 16th Amendment 4as created. Erushaber v. Union ,acific ailroad Compan&! #". U.S. 1! S 1=! 1+! 1$. 3n the matter of ta(ation! the Constitution recogni2es the t4o great classes of direct and indirect ta(es! and la&s do4n t4o rules b& 4hich their imposition must be governed! namel&: ?he rule of apportionment as to direct ta(es! and the rule of uniformit& as to duties! imposts and e(cises. ,olloc' v. /armers> Loan F ?rust Co.! 1*= U.S. "#-! **= ". /rom another point of vie4! the 16th Amendment demonstrates that that no such purpose 4as intended and on the contrar& sho4s that it 4as dra4n 4ith the ob5ect of maintaining the limitations of the Constitution and harmoni2ing their operation. We sa& this because it is to be observed that although from the date of the B&lton Case because of statements made in the opinions in that case it had come to be accepted that direct ta(es in the constitutional sense 4ere confined to ta(es levied directl& on real estate because of its o4nership! the Amendment contains nothing repudiating or challenging the ruling in the ,olloc' Case that the 4ord direct had a broader significance since it embraced also ta(es levied directl& on personal propert& because of its o4nership! and therefore the Amendment at least impliedl& ma'es such 4ider significance a part of the Constitution C a condition 4hich clearl& demonstrates that the purpose 4as not to change the e(isting interpretation e(cept to the e(tent necessar& to accomplish the result intended! that is! the prevention of the resort to the sources from 4hich a ta(ed income 4as derived in order to cause a direct ta( on the income to be a direct ta( on the source itself and thereb& to ta'e an income ta( out of the class of e(cises! duties and imports and place it in the class of direct ta(es. Erushaber v. Union ,acific ailroad Compan&! #". U.S. 1 S 1-

)ocial )ecurity
1. Social Securit& is a social 4elfare program essentiall& universal in its application! rather than a contractual arrangement. Nat>l. ailroad ,assenger Corp. v. Atchison! ?. F S./. &.! No. +$C1"-# 01-+*1 #. Congress provided that the states could 5oin the Social Securit& S&stem b& means of individual agreements in an attempt to permit 0them1 to pla& a continued role. /E C v. Mississippi! "*6 U.S. ="#! =6* 01-+#1 $. Social securit& claimant bears burden of proving disabilit&. Smith v. Shalala! -+= /.#d 1$=1 0+th Cir. 1--$1 ". Social Securit& Administration ma& not re5ect claim of fatigue based solel& on lac' of medical support. Aborn v. Sullivan! -*- /.#d 111 0+th Cir. 1--#1 *. 3n disabilit& cases! greater 4eight is afforded to opinion of treating ph&sician that that of nonCtreating ph&sician. amire2 v. Shalala! + /.$d 1"-- 00-th Cir. 1--$1

)overeignty

1. ?he 4ords 7sovereign people8 are familiarl& used to describe the political bod&! 4ho! according to our republican institutions! form the sovereign! and 4ho hold the po4er and conduct the government through their representatives. Ever& citi2en is one of these people and a constituent member of this sovereignt&. Scott v. Sandford! Mo.! 6. U.S. $-$! "." #. ?he State of Deorgia is not a sovereign po4er! in the sense that it is e(empt from suit in the federal courts b& a private citi2en. 0caused the creation of the Eleventh Amendment1; Chisholm v. State of Deorgia! # U.S. "1-! "** 0 esulted in creation of 11th Amendment1 $. 7Sovereignt&8 means supremac& in respect of po4er! domination or ran'; supreme dominion! authorit& or rule. Erandes v. Mitterling! 1-6 ,.#d "6" ". 7Dovernment8 is not 7sovereignt&.8 7Dovernment8 is the machiner& or e(pedient for e(pressing the 4ill of the sovereign po4er. Cit& of Eisbee v. Cochise Count&! =+ ,.#d -+# *. 7Sovereignt& of a state8 embraces the po4er to e(ecute its la4s and the right to e(ercise supreme dominion and authorit& e(cept as limited b& the fundamental la4. ,eople e( rel. Attorne& Deneral v. ?ool! +6 ,. ##"! ##6

)pecial!"eneral Appearance
1. 3f a defendant b& his appearance insists onl& upon ob5ection that he is not in court for 4ant of 5urisdiction over his person and confines his appearance for that purpose onl&! he has made a 7special appearance!8 but if he raises an& other 9uestion! or as's an& relief 4hich can onl& be granted upon h&pothesis that court had 5urisdiction of his person! he has made a 7general appearance.8 Ean' of America Nat. ?rust F Sav. Ass>n v. Barrah! #"+ ,.#d +1"! +1* #. While a special appearance ma& be made to attac' court>s 5urisdiction over defendant>s person! 5oining there4ith of attac' on plaintiff>s affidavit renders appearance a 7general appearance8 4aiving all ob5ections to such 5urisdiction. So4l v. Union ,ac. .Co.! =# /.Supp. *"#! *"$ $. A defendant! 4ho files an ans4er to the merits or in an& manner attac's plaintiff>s case! thereb&! ma'es a 7general appearance!8 and gives the court full 5urisdiction over the person of such defendant. )efferson ,ar' ealt& Corp. v. @elle& Dlover F Hale! 1# N.E.#d -==! -=". A voluntar& appearance 4hereb& a defendant obtains an e(tension of time in 4hich to plead is a 7general appearance.8 Goungblood v. Eright! -1 S.E.#d **-! *61 *. A special appearance b& defendant for purpose of filing a motion to dismiss restraining order and bill to en5oin collection of 5udgment did not constitute a 7general appearance.8 Mc/arlane v. Mc/arlane! #-$ N.W. +-*! +-= 6. 3f an appearance be for purpose of ob5ecting to 5urisdiction of court and is confined solel& to such 9uestion! appearance is 7special!8 but an& action of defendant! e(cept to ob5ect to 5urisdiction 4hich recogni2es the action as in court!

4ill amount to a 7general appearance.8 Duthrie v. ?hrel'eld Co.! 1-# ,.#d $.=! $.+ =. A 7general appearance8 ma& be entered b& ma'ing a motion! b& filing an ans4er! and in other 4a&s. Welter v. Eo4man <air& Co.! "= N.E.#d =$-! ="" +. Where defendant filed an ans4er! it made a 7general appearance!8 and thus conferred 5urisdiction of the court over itself from the date of the appearance. Bart v. igler! #-* N.W. $.+! $1. -. A general demurrer! filed 4ithout protestation is a 7general appearance.8 ,acific Selling Co. v. AlbrightC,rior Co.! *- S.E. "6+! "61.. An appearance made onl& for the purpose of moving to dismiss an action on one of the grounds specified in section of Code of Civil ,rocedures is made onl& on the h&pothesis that the part& is not properl& before the court and is a 7special appearance.8 /rohman v. Eonelli! #." ,.#d +-.! +-$ 11. A part& 4ho appears for the purpose of appl&ing to have proceedings set aside for 4ant of 5urisdiction 4aives nothing b& such appearance. McCaslin v. Camp! #6 Mich. $-.! $-1 1#. A part&>s appearance 4ith a statement that he appeared 7speciall&8 is a 7special appearance!8 though no ob5ection to the 5urisdiction 4as specified. Marr v. Coo'! 111 N.W. 116! 11= 1$. A 7special appearance8 is an appearance for the purpose of ob5ecting to the 5urisdiction! to the proof! or to some other specific matter! 4ithout submitting to the 5urisdiction of the court as to an& other matter. National /urnace Co. v. Moline Malleable 3ron Wor's! 1+ /. +6$! +6" 1". A 7special appearance8 must be made for purpose of urging 5urisdictional ob5ections onl& and must be confined to a denial of 5urisdiction. Ela'e v. Union 3ns. E(change! "6 N.E.#d 1"1! 1"# 1*. An appearance for an& purpose other than 9uestioning the 5urisdiction of the court is 7general8 and not 7special8 not4ithstanding that the appearance is accompanied b& the claim that the appearance is onl& special. ?he Uca&ali! "= /.Supp. #.$! #.6 16. A demand for a cop& of the complaint constitutes neither a 7general appearance8 nor a 7special appearance.8 Lisle v. ,almer! #- N.G.S.#d -=*! -=6 1=. ,art& desiring to challenge 5urisdiction over his person 4aives 7special appearance8 and enters 7general appearance!8 b& calling into action po4ers of court over sub5ectCmatter of controvers&. Application of Doorich! 6+ ,.#d *-= 1+. ?he appearance of an attorne& for the sole purpose of moving to dismiss the action for irregularities in the proceedings is a 7special appearance!8 and the right to dismiss ma& be insisted on. Woodard v. ?riCState Milling Co.! ** S.E. =.! =1 1-. An appearance is 7special8 4hen its sole purpose is to 9uestion court>s 5urisdiction. Eehr v. <uling! #6. N.W. #+1

#.. Appearance for sole purpose of challenging 5urisdiction over person is 7special appearance.8 obinson v. Dlover! #"" N.W. $##! $#$ State 1. 3t is true that the police po4er of a State is the least limitable of its po4ers! but even it ma& not transcend the prohibition of the Constitution of the United States. ShevlinCCarpenter Co. v. Minnesota! #1+ U.S. *=! 61 #. Eleventh Amendment does not bar state la4 actions against state officials in their individual capacities. Bunt v. Eennett! 1= E$d 1#6$ 01.th Cir. 1--"1; Ba&s Count& Duardian v. Supple! -6- /#d 111 0*th Cir. 1--#1 $. Supervisor ma& be liable based on either: 11 personal involvement in constitutional deprivation or #1 sufficient casual connection bet4een superior>s 4rongful conduct and the constitutional violation. Armendari2 v. ,enman! $1 /$d +6. 0-th Cir. 1--"1 ". Absolute immunit& protects the prosecutor>s role as advocate for the state! not his or her role as an administrator or investigative officer! and that prosecutorial conduct is given absolute immunit& onl& if it is intimatel& associated 4ith the 5udicial phase of the criminal process. Du2manC ivera v. iveraCCru2! ** /$d #6 01st Cir. 1--*1 *. /or purposes of immunit& anal&sis! federal officials are indistinguishable from state officials and receive no greater degree of protection from constitutional claims. Mendenhall v. Doldsmith! *- /$d 6+* 0=th Cir. 1--*1 6. Une9ual application of state la4 ma& violate e9ual protection clause. Mac'en2ie v. Cit& of oc'ledge! -#. /#d 1**" 011th Cir. 1--11 =. All *. states of the Union adopted the Constitution of the United States as its fundamental la4! and that all that 4as meant b& these 4ords 4as that the state ac'no4ledged! as ever& other state has done! the Supremec& of the /ederal Constitution. Co&le v. %'lahoma! ##1 U.S. **-! *=6. +. ?he Supreme Court held that state statutes did not ta'e precedent over constitutional la4. )ames v. @entuc'&! "66 U.S. $"1 -. ?he legislature ma& not! under the guise of protecting the public interests! arbitraril& interfere 4ith private business! or impose unusual or unnecessar& restrictions upon la4ful occupations. 3ts determination as to 4hat is a proper e(ercise of its police po4ers is not final or conclusive! but is sub5ect to the supervision of the courts. La4ton v. Steele! 1*# U.S. 1$$ 1.. @no4ledge in possession of a government emplo&ee 4ho has a dut& to transmit or receive information is 'no4ledge in the possession of the United States or an appropriate agenc&. 3n re Agent %range ,roduct Liabilit& Litigation! *-= /.Supp. =". 11. Ever& member of a State legislature! and ever& e(ecutive and 5udicial officer of a State! shall! before he proceeds to e(ecute the duties of his office! ta'e an

oath in the follo4ing form! to 4it: 73! AE! do solemnl& s4ear that 3 4ill support the Constitution of the United States.8 " U.S.C.! Section 1.1 1#. /ederal courts 4ill be guided b& state la4. U.S. v. /irst Nat>l. Ean'! "=. /.#d -"" 1$. ?he legislature>s determination as to 4hat is a proper e(ercise of its police po4ers is not final or conclusive! but is sub5ect to the supervision of the courts. La4ton v. Steele! 1*# U.S. 1$$ 1". When a state e(ercises po4er 4holl& 4ithin the domain of state interest! it is insulated from federal 5udicial revie4! but such insulation is not carried over 4hen state po4er is used as an instrument for circumventing a federall& protected right. United States v. eading Co.! ##6 U.S. $#" 1*. ,o4ers of the legislature are absolute e(cept as limited b& the Constitution. Crabtree v. A&er! 1## Me 1+ 16. Hiolation of administrative la4 voids the agenc& action. U.S. v. Beffner! "#. /.#d +.- 01-=.1 1=. 3n administrative la4 the term 75urisdiction8 has three aspects: 11 personal 5urisdiction; #1 sub5ect matter 5urisdiction; and $1 the agenc&0s1 scope of authorit& under statute. Compliance 4ith 5urisdictional re9uirement is essential to give validit& to the determinations of administrative agencies; absent such compliance! their acts are void and open to collateral attac'. Actions b& an agenc& in violation of its o4n regulations or procedures are illegal! void and constitute procedural error. Hander Molen v. Stetson! *=1 /.#d 61= 01-==1 1+. ?he la4 re9uires proof of 5urisdiction to appear on the record of the administrative agenc& and all administrative proceedings. Bagans v. Lavine! "1* U.S. *$$ 1-. ?he authorit& of public officers to proceed in a particular 4a& and onl& upon specific conditions as to such matters implies a dut& not to proceed in an& manner other than that 4hich is authori2ed b& the la4. /irst Nat>l. Ean' v. /lier! += AL #6= #.. No sanction can be imposed absent proof of 5urisdiction. Standard v. %lsen! =" S.Ct. =6+ #1. All household goods o4ned b& the user thereof and used solel& for noncommercial purposes shall be e(empt from ta(ation! and such person entitled to such e(emption shall not be re9uired to ta'e an& affirmative action to receive the benefit of such e(emption. Article -! Section #! ,ara 0"1 Constitution of Ari2ona ##. A state is prohibited from lev&ing an e(cise! occupation! or privilege ta( on activities conducted be&ond its borders or 5urisdiction. Euc'staff Eath Bouse Compan& v. Mc@inle&! $.+ U.S. $*+ #$. %ur s&stem of government! based upon the individualit& and intelligence of the citi2en! the state does not claim to control him! e(cept as his conduct to

others! leaving him the sole 5udge as to all that onl& affects him. Mugler v. @ansas! 1#$ U.S. 6#$! 6*-C6. #". State e(ecutive officials are not entitled to absolute immunit& for their official actions! and that the phrase 7acting in their official capacities8 is best understood as a reference to the capacit& in 4hich the state officer is sued! not the capacit& in 4hich the officer inflicted the alleged in5ur&. Bafer v. Melo! *.# U.S. #1 #*. When state official acts under state la4 in manner violative of /ederal Constitution he comes into conflict 4ith superior authorit& of that Constitution and is stripped of his official or representative character and sub5ected in his person to conse9uences of his individual conduct; a state has no po4er to impart to him an& immunit& from responsibilit& to supreme authorit& of United States. Scheuer v. hodes! "16 U.S. #$# 01-="1 #6. When a state appears as a part& to a suit! she voluntaril& casts off the robes of her sovereignt&! and stands before the bar of a court of her o4n creation in the same attitude as a individual litigant; and her rights are determined and fi(ed b& the same principles of la4 and e9uit&! and a 5udgment for or against her must be given the same effect as 4ould have been given it had it been rendered in a case bet4een private individuals. State v. Cloudt! +" S.W. "1*! "16; #=. ?he State at all time voluntaril& appears before her courts. 3f she elects to so appear! there are no special privileges to be accorded b& the courts. ?o accord the State an& such special privileges 4ould defeat the purpose of the appearance. ?he government is bound b& la4 5ust as the citi2en. Barris v. %>Connor! 1+* S.W.#d --$! --+; #+. Eleventh Amendment does not erect a barrier against suits to impose 7individual and personal liabilit&8 on state officials under Section 1-+$. Bafer v. Melo! *.# U.S. #1 #-. ?he mere fact that Drand iver <am Authorit& is an agenc& of the state does not e(tend to it 7sovereign immunit&.8 Drand B&dro v. Drand iver <am! Authorit&! 1$- ,.#d =-+ $.. ?he state>s 7sovereign immunit& from liabilit&8 e(ists 4hen the state is engaged in a governmental function! and is distinguishable from the state>s 7sovereign immunit& from suit.8 Manion v. State! * N!.W.#d *#=! *#+ $1. State 5udge does not en5o& 5udicial immunit& from unconstitutional behavior 4hen facts are sufficient to grant part& declarator& or in5unctive relief against 5udge. Eggar v. Cit& of Livingston! ". /.$d $1# 0-th Cir. 1--"1 $#. /or purposes of immunit& anal&sis! federal officials are indistinguishable from state officials and receive no grater degree of protection from constitutional claims. Mendenhall v. Doldsmith! *- /.$d 6+* 0=th Cir. 1--*1 $$. ?he Supreme Court held that state statutes did not ta'e precedent over constitutional la4. )ames v. @entuc'&! "66 U.S. $"1 $". A State can no more impair the obligation of a contract b& her %rganic La4 than b& legislative enactment! for her Constitution is a la4 4ithin the meaning of

the contract clause of the National Constitution. <odge v. Woolse&! *- U.S. 1+ Bo4. $$1 $*. /or a breach of its contract b& a State! no remed& is provided b& the Constitution of the United States against the State itself. Antoni v. Dreenho4! 1.= U.S. =+$ $6. ?o ta'e a4a& all remed& for the enforcement of a right is to ta'e a4a& the right itself. Eut that is not in the po4er of the State. Siebert v. Le4is! 1## U.S. #+"! #-* $=. 3t is conceded that 4here the 5urisdiction depends alone upon the character of the parties! a controvers& bet4een a State and its o4n citi2ens is not embraced 4ithin it; but it is contended that though 5urisdiction does not e(ist on that ground! it nevertheless does e(ist if the case itself is one 4hich necessaril& involves a federal 9uestion; and 4ith regard to ordinar& parties this is undoubtedl& true. Bans v. State of Louisiana! 1$" U.S. 1 $+. ?he Eleventh Amendment did not in terms prohibit suits b& individuals against the States! but declared that the Constitution should not be construed to import an& po4er to authori2e the bringing of such suits. Bans v. State of Louisiana! 1$" U.S. 1 $-. 3n all these cases the effort 4as to sho4! and the court held! that the suits 4ere not against the State or the United States! but against the individuals; conceding that if the& had been against either the State or the United States! the& could not be maintained. Eoard of Li9uidation v. McComb! -# ULSL *$1; United States v. Lee! 1.6 U.S. 6$; ,oinde(ter v. Dreenho4! 1.- U.S. #60Iuoted in Bans! supra1 ".. Where propert& or rights are en5o&ed under a grant or contract made b& a State! the& cannot 4antonl& be invaded. Whilst the State cannot be compelled b& suit to perform its contracts! an& attempt on its part to violate propert& or rights ac9uired under its contracts! ma& be 5udiciall& resisted; and an& la4 impairing the obligation of contracts under 4hich such propert& or rights are held is void and po4erless to affect their en5o&ment. Bans v. State of Louisiana! 1$" U.S. 1! #1 "1. /or a breach of its contract b& a State! no remed& is provided b& the Constitution of the United States against the State itself. Antoni v. Dreenho4! 1.= U.S. =+$ "#. ?o ta'e a4a& all remed& for the enforcement of a right is to ta'e a4a& the right itself. Eut that is not in the po4er of the State. Siebert v. Le4is! 1## U.S. #+"! #-* "$. 3mmunit& from suit is a high attribute of sovereignt& a prerogative of the State itself 4hich cannot be availed of b& public agents 4hen sued for their o4n torts. ?he 11th Amendment 4as not intended to afford them freedom from liabilit& in an& case 4here! under color of their office! the& have in5ured one of the State>s citi2ens. ?o grant them immunit& 4ould be to create a privileged class free from liabilit& from 4rongs inflicted or in5uries threatened. ,ublic agents must be liable

to the la4! unless the& are to be put above the la4. Bop'ins v. Clemson Agri. College! ##1 U.S. 6$6; %ld Colon& ?rust Co. v. Seattle! #=1 U.S. "#= "". A suit against a municipal corporation is not a suit against 7one of the United States8 4ithin the meaning of this amendment 0Eleventh Amendment1. ?hat such a corporation is the agent of the state government is undoubtedl& true! but it does not follo4 therefrom that a suit against it or its officers is such a suit. Camden 3nterstate .Co. v. Catlettsburg! 1#- /ed. ep. "## 01-."1 "*. ?he Eleventh Amendment of the Constitution of the United States is limited to those suits in 4hich a state is a part& on the record! and does not prohibit suits against counties. Lincoln Count& v. Luning! 1$$ U.S. *$. 01+#11 "6. State court 5udges are not immune from in5unctive po4er of federal court if actions of such 5udges are in contravention of la4 or e(ceed their constitutional authorit&. Bodges v. Bamilton Municipal Court! $"- /.Supp. 11#* 01-=#1 "=. ?he act of a public official of a state is the act of the state in depriving an individual of propert&! life! or libert& 4ithout due process. Neal v. <ele4are! 1.$ U.S. $=. "+. 3f an administrative officer or agenc& acts outside the scope of its authorit& or 5urisdiction! its act are null and void. <oolan v. Carr! 1#* U.S. 61+ "-. Under 1+ USCS #"#! 7color of la48 includes misuse of po4er possessed b& virtue of state la4 and made possible onl& because 4rongdoer is clothed 4ith authorit& of state la4. United States v. ame&! $$6 /.#d *1# 0CA" W Ha 1-6"1 *.. 1+ USCS #"# applies to actions ta'en under color of both state and federal la4. United States v. %therson! 6$= /.#d 1#=6 0CA- Cal 1-+.1 *1. 7Agenc& action8 includes an& failure to act 0* USC **1 01$11. Caulfield v. Eoard of Education! ""- /.Supp. 1#.$ 0E< NG 1-=+1 *#. ?he term 7state8 as used in connection 4ith matters of government in the United States usuall& designates a member of the Union of states of the United States. +1A C.).S.! States! Sec. #

)tate Constitutions
1. ?he state constitution is the highest e(pression of the 4ill of the people! and! so far as it spea's! it represents the state. E( parte Eraun! 1"1 Cal. #."; =" ,. =+. #. ?he constitution is the supreme la4! 4ritten b& the supreme po4er of the state! the people themselves. Weinberger v. Miller! += %hio St. 1#; -- N.E. 1.=+ $. No function of government can be discharged in disregard of or in opposition to the fundamental la4. Collins v. Martin! #-. ,a. $++; ** A.L. . $11 ". A state constitution is the fundamental! basic! and substantive la4 of the state. an'in v. Love! 1#* Mont. 1+"; #$# ,.#d --+

*. ?he state constitution is the mandate of a sovereign people to its servants and representatives. No one of them has a right to ignore or disregard its mandates. )ohn /. )el'e Co. v. Emer&! #1" N.W. $6-; *$ A.L. . "6$ 6. All of the people of the state are bound b& state constitutional limitations and all provisions of the state constitution are the supreme la4 of the land. State v. Darden Cit&! =" 3daho *1$; #6* ,.#d $#+ =. ?he constitution of the state is a higher authorit& than an& act or la4 of an& officer or bod& assuming to act under it! and in case of conflict the constitution must govern and the act or la4 in conflict 4ith it must be held to have no legal validit&. )ohnson v. <u'e! 1+. Md. "$"; #" A.#d $." +. A mandate of a state constitution is supreme. %>Eannon v. Dustafson! 1#. Mont. ".#; $.$ ,.#d -$+ -. <isobedience or evasion of a constitutional mandate ma& not be tolerated even though such disobedience ma&! at least temporaril&! promote in some respects the best interest of the public. Sloat v. Eoard of E(aminers of Eoard of Education! #=" N.G. $6=; 11# A.L. . 66. 1.. 3nsofar as the state constitution purports to regulate an& matter not covered b& the federal Constitution! the state constitution is controlling. <&e v. Council of Compton! +. Cal. App.#d "+6; 1+# ,.#d 6#$ 11. ?he constitution must be interpreted and given effect as the paramount la4 of the land. Armstrong v. ?reasurer of Athens Count&! 1. %hio #$* affd "1 U.S. #+1; 1. L.Ed -6* 1#. With regard to the state of /lorida! the /lorida Constitution is the supreme la4 adopted b& the people. Miami Eeach v. Lachman 0/la.1 =1 So.#d 1"+ app dismd $"+ U.S. -.6 1$. Ever& state la4 must conform in the first place to the Constitution of the United States! and then to the subordinate constitution of the particular state; and if it infringes upon the provisions of either! it is so far void. Bouston v. Moore! 1+ U.S. 1; * L.Ed. 11". Manifestl&! 4hen the constitution of the state declares and defines certain public policies! such public policies must be paramount! though a score of statutes conflict and a multitude of 5udicial decisions be to the contrar&. @int2 v. Barringer! -- %hio St. #".; 1#" N.E. 16+; 1# A.L. . 1#". 0ovrld on other grounds in ?aplinC iceCCler'in Co. v. Bo4er! 1#" %hio St. 1#$; 1. %hio L. Abs. "=+; 1== N.E. #.$; +1 A.L. . 111=1 1*. A constitutional provision controls a statute conflicting there4ith regardless of the fact that the statute 4as adopted as an initiative measure. McMillan v. Siemon! $6 Cal. App.#d =#1; -+ ,.#d =-. 16. ?here is no la4 enforceable b& the courts above or be&ond the constitution. Eoard of Education v. Minor! #$ %hio St. #11

1=. ?he doctrine of a higher la4 than the constitution has no place in American 5urisprudence. ,eel Splint Coal Co. v. State! $6 W. Ha. +.#; 1* S.E. 1... 1+. 3t is fundamental that in passing la4s the legislature is governed b& the provisions of the constitution. ?out v. Elair! $ Cal. App. 1+.; +" ,. 6=1 1-. ?he constitution contemplates that the legislature shall enact all la4s necessar& to give effect to its commands! but that no la4 shall contravene its provisions. ,eople v. Stephens! 6# Cal. #.#.. ?he state constitution is superior to an& act of the legislature and the constitution! and not such act! must govern the case to 4hich the& both appl&. Appeal of ,olla' 0C,1 +- %hio L. Abs. 11#; 1+# N.E.#d 6#1. A legislative definition cannot be more inclusive than the constitutional definition of the same term; it can neither enlarge nor diminish the scope of such term. Albert v. Bobler! 111 Cal. $-+; "$ ,. 11." ##. When a classification is made in the constitution! neither the legislature nor the courts can ma'e a different classification. /ulton v. Erannan! ++ Cal. "*"; #6 ,. *.6 #$. Where constitutions spea'! statutes should remain silent. S4it2er v. State! 1.$ %hio St. $.6; 11$ N.E. **# #". What the constitution grants! no statute can ta'e a4a&. State e( rel. Boel v. Ero4n! 1.* %hio St. "=-; 1 %hio L. Abs. #$.; 1$+ N.E. #$. #*. A constitutional limitation 4hich in itself is valid and not in conflict 4ith the /ederal Constitution cannot be made invalid b& an& act of the legislature. Eeveridge v. Le4is! 1$= Cal. 6#=; 6= ,. 1.". #6. Local la4s or ordinances enacted b& a cit& must be consistent 4ith the state constitution. Eell v. Haughn 1** /la. **1; #1 So.#d $1; Evans v. Eerr&! #6# N.G. 61; 1+6 N.E. #.$ #=. )udicial decisions! ho4ever numerous! are sub5ect to correction b& the constitution itself. State v. Euente! #*6 Mo. ##=; 16* S.W. $". #+. No rule of court! ho4ever general its terms! ma& contravene a privilege based on a constitutional right. )oa9uin F @ings iver Canal F 3rrig. Co. v. Stevinson! 16* Cal. *".; 1$# ,. 1.#1 #-. La4 and courtCmade rules of e(pedienc& must not be placed above the state constitution. State v. Arregui! "" 3daho "$; *# A.L. . "6$ $.. A 5udge has no more right to disregard and violate the constitution than a criminal has to violate the la4. ,eople e( rel.. Sammons v. Sno4! $". 3ll. "6"; =# A.L. . =-+ $1. 3t is the dut& of all officials! 4hether legislative! 5udicial! e(ecutive! administrative! or ministerial! to so perform ever& official act as not to violate constitutional provisions. Montgomer& v. State! ** /la. -=; "* So. +=-

$#. ?he Constitution 4as made not to act upon the legislative department alone! but upon ever& department of the government. Wa& v. Billier! 16 %hio 1.* $$. ?he provisions of the constitution must be given effect even if in doing so a statute is held to be inoperative. State e( rel. West v. Eutler! =. /la. 1.#; 6- So. ==1

)ummary #udgment
1. Summar& 5udgment is appropriate 4hen there are no genuine issues of material fact and the moving part& is entitled to 5udgment as a matter of la4. A fact is material if it might significantl& affect the outcome of the suit under the governing la4. Bafen v. United States! $. /ed. Cl. "=. 01--"1 #. ,art& see'ing summar& 5udgment bears burden of demonstrating absence of an& genuine factual dispute. @e&4ell Corp. v. Weinstein! $$ /.$d 1*- 0#nd Cir. 1--"1 $. Movant for summar& 5udgment must sho4 absence of an& genuine issue of material fact or! in alternative! that there is no evidence to support nonmoving part&>s case; once proper sho4ing is made! burden shifts to adverse part& to prove b& sufficient evidence that genuine issue of material fact is present for trial. Atlas Enterprises Limited ,artnership v. United States! $# /ed. Cl. =." 01--*1; Cit& of Wheeling v. United States! #. Cl. Ct. 6*- 01--.1 ". Summar& 5udgment ma& be granted 4hen affidavits in support of motion pierce alleged issues of fact raised in pleadings. Schoenbaum v. /irstbroo'! #6+ /.Supp. $+* 01-6=1 *. Summar& 5udgment is not granted unless there are no triable issues. ?olentino v. /riedman! "6 /.$d 6"* 0=th Cir. 1--*1 6. ole of 5udge at summar& 5udgment stage is not to 4eigh evidence! but to determine 4hether there is a genuine issue of material fact. Anderson v. Libert& Lobb&! 3nc.! "== U.S. #"# 01-+61; Cit& Mgm>t Corp. v. U.S. Chemical Co.! 3nc.! "$ /.$d #"" 06th Cir. 1--"1 =. Even if there are some disputed facts! 4here undisputed facts are material facts involved and those facts sho4 one part& is entitled to 5udgment as a matter of la4! summar& 5udgment is appropriate. Cameron v. 3nternal evenue Service! *-$ /.Supp. 1*". 01-+"1 +. Summar& 5udgment procedure is properl& regarded not a disfavored procedural shortcut but! rather! as an integral part of the federal rules as a 4hole! 4hich are designed to secure the 5ust! speed&! and ine(pensive determination of ever& action. Celote( Corp. v. Catrett! "== U.S. $1= 01-+61 -. Where movant has supported its motion for summar& 5udgment 4ith affidavits or other evidence 4hich unopposed! 4ould establish its right to 5udgment! nonmovant ma& not rest upon general denials in its pleadings or other4ise! but must proffer countering evidence sufficient to create genuine factual dispute. S4eats /ashions! 3nc. v. ,annill @nitting Co.! +$$ /.#d 1*6. 01-+=1

1.. Mere denials or conclusor& statements not supported b& specific facts sho4n b& affidavits or other evidence are insufficient to establish e(istence of factual dispute for summar& 5udgment purposes. Ma&er v. United States! $# /ed. Cl. 1"- 01--"1 11. ?o create genuine issue of material fact to defeat summar& 5udgment! nonmovant must do more than present evidence raising some doubt regarding assertedl& disputed issue! and that part& moving for summar& 5udgment need not produce evidence sho4ing absence of genuine issue of material fact! but rather ma& discharge its burden b& sho4ing absence of evidence to support nonmoving part&>s case. /romson v. United States! $# /ed. Cl. 1 01--"1 1#. While motion to dismiss for failure to state a claim ma& be treated as motion for summar& 5udgment 4hen evidentiar& materials outside of pleadings are considered! rule dealing 4ith sub5ect matter 5urisdiction contains no similar provision. 0 C/C! ule 1#0b101!"1! #+ U.S.C.A.1 Coo' v. United States! $# /ed. Cl. =+$ 01--*1

&a(es
1. %nl& the rare ta(pa&er 4ould be li'el& to 'no4 that he could refuse to produce his records to 3nternal evenue Service agents. U.S. v. <ic'erson! "1$ /#d 1111 #. A person cannot be forced to submit records for inspection. U.S.A. F /red ). osauer v. )ohanna; Han ,operin! U.S. <istrict Court of Minn.! "th <iv. "C=1 Civil 6$* $. ?he claim and e(ercise of a constitutional right cannot be converted into a crime. Miller v. U.S. #$. / "+6!"+". 3 S summons 4as not entitled to enforcement if the purpose of the investigation 4as to obtain evidence for a pending criminal case. <onaldson v. U.S.! ".. U.S. *1= 01-=11 *. %ne does not derive income be rendering services and charging for them. Ed4ards v. @eith! #$1 /ed ep 11. 6. ?he citi2en is immune! has a right to be free from such ta(ation and regulating! duties! obligations! sanctions as a matter of la4. U.S. v. ?e(as! $+" U.S. 1**; Wilson v. U.S.! ##1 U.S. $61 =. Who 4ould believe the ironic truth that the cooperative ta(pa&er fares much 4orse than the individual 4ho relies upon his constitutional rightsJ.%nl& the rare ta(pa&er 4ould be li'el& to 'no4 that he could refuse to produce his records to 3nternal evenue Service agents. U.S. v. <ic'erson! "1$ /#d 1111 +. ?he Congress shall have the po4er to la& and collect ta(es! duties! imposts! and e(cises! to the pa& the debts and provide for the common defense and general 4elfare of the United States; but all duties! imposts! and e(cises shall be uniform through the United States. Article 3! Section +! Clause 1! US Constitution

-. Congress ma& not! under the ta(ing po4er! assert a po4er not delegated to it b& the constitution. egal <rug Co. v. Wardell! #6. U.S. $+6 1.. ,enns&lvania declares income ta(! graduated st&le! as illegal! and outla4s it in the state of ,enns&lvania. Amidon v. @ane! ,a.#=- A.#d *$ 11. 3nternal evenue Service could not sei2e private records even 4ith a sei2ure 4arrant. Hincent . Bill v. )a& D. ,hilpott! <ist. <ir. %f 3 S! et al! No. 1+"+=! )an. 1-=1! =th Cir. Ct. %f Appeals 1#. )eopard& Assessment of 3 S no4 prohibited b& Supreme Court in )anuar& 1$! 1-=6. Laing v. U.S.! "-$ /#d 1#11 1$. 3 S must obtain a court order to compel a ta(pa&er to surrender his boo's! papers and records for audit. Sherar v. Cullen! "+1 /.#d -"* 0- C.A.! 1-=$1; #6 U.S.C.! Section =".#0b1 easonable compensation for labor on service rendered is not profit. Lauderdale Cemetar& Assoc. v. Matthe4s! $"* ,A. #$1". ?here is a clear distinction bet4een profit and 4ages or compensation for labor. Compensation for labor cannot be regarded as profit 4ithin the meaning of the la4. %liver v. Balstead! 1-6 H.A. --# 1*. ?he right to labour and to its protection from unla4ful interference is a constitutional as 4ell as a common la4 right. Ever& man has a natural right to the fruits of his o4n industr&. Eogni v. ,erotti! 11# N.E. 6"$ 16. ?he right to ac9uire propert& includes the right to ac9uire propert& b& labour. State v. )ulo4! $1 S.W. =+1; "+ Am )ur #d! Sections 1C$ 1=. ?he right of the citi2en to choose and follo4 an innocent occupation is both a personal and propert& right. Cummings v. Missouri! " Wall $#1 1+. /ederal reserve notes are valueless. 3 C! Section 1.1..1C1 0"6*=1 C.C.B. 1-. A chec' is not mone&. School <ist. v. U.S. Nat>l. Ean'! #11 ,#d =#$ #.. ?he term 7person8 as used in this chapter includes an officer or emplo&ee of a corporation! or a member or emplo&ee of a partnership! 4ho as such officer! emplo&ee! or member is under a dut& to perform the act in respect of 4hich the violation occurs. 0,rivate citi2enOindividual is not a person1 #6 U.S.C.! Section =$"$ #1. No e(cise ta( ma& be imposed upon a right secured b& the Constitution. Drosican v. American ,ress Co.! #-= U.S. #$$ 01-$61; Murdoc' v. ,enns&lvania! $1- U.S. 1.* 01-"$1 ##. An income ta( is neither a propert& ta( nor a ta( on occupations of common right! but is an e(cise ta(. Sims v. Ahrens! #=1 S.W. =#. ?he individual right to live and o4n propert& are natural rights for the en5o&ment of 4hich an e(cise 0ta(1 cannot be imposed. edfield v. /isher! 1$* %re 1+. #$. An e(cise ta( involves the e(ercise of a privilege. /lint v. Stone ?rac&! ##. U.S. 1.=

#". eali2ing and receiving income is not a privilege that can be ta(ed. )ac' Cole Co. v. Alfred ?. Mc/arland! $$= S.W.#d "*$! "** #*. Since the right to receive income or earnings is a right belonging to ever& person! this right cannot be ta(ed as privilege. )ac' Cole Co. v. Alfred ?. Mc/arland! $$= S.W.#d "*$! "*6 #6. 3t cannot be denied that the Legislature can name an& privilege a ta(able privilege and ta( it b& means other than an income ta(! but the Legislature cannot name something to be a ta(able privilege unless it is first a privilege. )ac' Cole Co. v. Alfred ?. Mc/arland! $$= S.W.#d "*$ 01-6.1 #=. ?a(pa&er 4ho alleged unla4ful sei2ure and subse9uent use of his ta( information could pursue remed& through Eivens action! or through other applicable tort action. Sto'4it2 v. U.S.! +$1 /#d +-$ 0-th Cir. 1-+=1 #+. E(cise ta( is one not directl& imposed upon persons or propert&. Ne4 Neighborhoods v. WHA. Wor'ers Comp. /und! ++6 /#d =1" 0=th Cir. 1-+61 #-. Wages are income for purpose of internal revenue. U.S. v. Connor! +-+ /#d -"# 0$ rd Cir. 1--.1; Coleman v. C3 ! =-1 /#d 6+ 0=th Cir. 1-+61 $.. ,roperl& e(ecuted lev& does not automaticall& entitle government to ta(pa&er propert&. esolution ?rust Corp. v. Dill! -6. /#d $$6 0$rd Cir. 1--#1 $1. Notice of deficienc& is 7tic'et8 to the court that allo4s ta(pa&er to challenge ta( assessment before pa&ing it. Duthrie v. Sa4&er! -=. /#d =$$ 01.th Cir. 1--#1 $#. ?o prove violation of ta( evasion statute! government must demonstrate the e(istence of a ta( deficienc&! that the defendant acted 4illfull&! and that the defendant too' an affirmative step to elude or defeat the pa&ment of ta(. U.S. v. obinson! -=" /#d *=* 0*th Cir. 1--#1; U.S. v. Eeall! -=. /#d $"$ 0=th Cir. 1--#1 $$. When there is reasonable doubt about meaning of revenue statute! doubt is resolved in favor of those ta(ed. Securit& Ean' Minnesota v. C3 ! --" /#d "$# 0+th Cir. 1--$1 $". %b5ectivel& reasonable goodCfaith misunderstanding of the la4 negates 4illfulness. ?o sho4 4illfulness in criminal ta( cases! government must sho4 a4areness of legal dut&. U.S. v. Chee'! ++# /#d 1#6$ 0=th Cir. 1-+-1 $*. U.S. v. Bilgeford! = /$d 1$". 0=th Cir. 1--$1 $6. %ffense of failure to file ta( return consists of three elements: 11 defendant 4as re9uired to file ta( return; #1 he failed to file return; and $1 he acted 4illfull&. U.S. v. Nichols! - /$d 1"#. 0-th Cir. 1--$1 $=. Unli'e treasur& regulations! 3 S rulings do not have the force of la4 and are merel& persuasive authorit&. Constantino v. ? W. 3nc.! 1$ /$d -6- 06th Cir. 1--"1 $+. %nce proper assessment has been made! ta(pa&er>s recourse is to pa& the ta( and bring suit for refund. Bempel v. U.S.! 1" /$d *=# 011th Cir. 1--"1

$-. ?a( court decision on 9uestions of statutor& interpretation is sub5ect to de novo revie4. Wolpa4 v. C3 ! "= /$d =+= 06th Cir. 1--*1 ".. /ederal ta( liens do not automaticall& prime all other liens; rather! priorit& is government b& federal common la4 principle that first in time is first in right. Monica /uel! 3nc. v. 3 S! *6 /$d *.+ 0$rd Cir. 1--*1 "1. ?he state can onl& ta( and regulate something it created. Ward v. Mar&land! 1# Wallace "1+ "#. ?he United States Dovernment is a foreign corporation 4ith respect to a state. NG E: Merriam! "1 L.Ed. #+= 01-=$1 "$. When section 6.#.0b1 is lifted out of the Code and read literall&! as petitioner has done! its scope is broad and its meaning and purpose ha2&. Eut the 3nternal evenue Code cannot be so read! for each section is not a selfCcontained 4hole! but rather a building bloc' of a comple(! interrelated statute. Eased on its location in chapter 61 and the lac' of an& crossCreferences 0other than the 4ord 7return81! section 6.#.0b1 is not to be read as a prere9uisite to the Commissioner>s proceeding under section 6#.10a10110ch.6$1. Bartman v. C.3. .! 6* ?.C. *"# 01-=*1 "". ?he Commissioner shall! to the e(tent of authorit& other4ise vested in him! provide for the administration of the United States internal revenue la4s in the U.S. ?erritories and insular possessions and other authori2ed areas of the 4orld. ?.<.%. No. 1*.C.1! *1 /ed eg -*=1! #C#=C+6 "*. ?he term 7emplo&ee8 specificall& includes officers and emplo&ees 4hether elected or appointed! of the United States! a State! territor&! or political subdivision thereof or the <istrict of Columbia or an& agenc& or instrumentalit& of an& one or more of the foregoing. /ed. eg.! ?uesda&! Sept. =! 1-"$! Sec ".".1."! pg 1##6= "6. Absent notice! such as 4here regulation is not sufficientl& clear as to 4arn part& of 4hat is e(pected of it! agenc& ma& not deprive part& of propert& b& imposing civil or criminal liabilit&. Deneral Electric Co. v. E. ,. A.! *$ /.$d 1$#" 0<.C. Cir. 1--*1 "=. /ederal Courts must first determine 4hat propert& or rights to propert& an individual has under state la4 in appl&ing a federal revenue act for purpose of determining 4hether propert& ma& be sold for unpaid ta(es. Berndon v. U.S.! *.1 /.#d 1#1- 01-="1 "+. A failure substantiall& to compl& 4ith the statutor& re9uirements as to the mode and manner or ma'ing the lev& invalidates the ta(; and there must be strict compliance 4ith mandator& proceduresJno ta( can be sustained as valid unless it is levied in accordance to the letter of the statute. Bough v. North Adams! +# N.E. "6 *.. An&thing that is a right cannot be sub5ect to conditions or licensing. Lane v. Wilson! $.= U.S. #6+! #=*

*1. ?he general term 7income8 is not defined in the 3nternal Eallard v. United States! *$* /ed. ep.#d "..! "." 01-6=1

evenue Code.

*#. With the 3 S>s broad po4er must come a concomitant responsibilit& to e(ercise it 4ithin the confines of the la4. ?he Court has emphasi2ed that no official is above the la4! and that broad po4ers present broad opportunities for abuse. Mar' v. Droff! *#1 /.#d 1$+. *$. ?he reasonable construction of the ta(ing statutes does not include vesting an& ta( official 4ith absolute po4er of assessment against individuals not specified in the statutes as persons liable for the ta( 4ithout an opportunit& for 5udicial revie4 of this status before the appellation of 7ta(pa&er8 is besto4ed upon them and their propert& sei2ed. Eotta v. Scanlon! ##+ /.#d $." 01-611 *". A lien is securit& for a debt! dut& or obligation. Burle& v. Eoston! *" N.E.#d 1+$ **. A lien is a charge on propert& for pa&ment of a debt or dut&. Barpeth Motors! 1$* /.Supp. +6$ *6. Lien is a charge on propert& to secure pa&ment or performance of dut&! debt! or other obligation. U.S. v. ,hillips! #6= /.#d $=" *=. Secretar& of ?reasur& cannot! b& regulations! alter revenue la4s. Morril v. )ones! 1.6 U.S. "66 01++$1 P1!...!... in damages. ?a(pa&er>s Eill of ights! Section +.10a1 *+. Congress does not have the authorit& and 5urisdiction to regulate commerce 4ithin the *. states of the Union. United States v. Scarborough! "$1 U.S. *6$ *-. Stops levies against personal ban' accounts. Commerce! "=# U.S. =1$; 1.* S.Ct. #-1U.S. v. Nat>l. Ean' of

6.. ?reasur& regulations re9uire that the /orm #$CC contain the ta(pa&er>s name! social securit& number and address! the name of the corporation! the character of the liabilit& assessed! the amount of the ta(! the ta(able period involved! and the signature of a responsible officer 0#6 C/ ! Section $.1.6#.$C 11. obinson v. U.S.! -#. /.#d 11*=; Ere4er v. U.S.! =6" /.Supp. $.-; Curle& v. U.S.! =-1 /.Supp. *#; ,ortillo v. Commissioner! -$# /.#d 11#+ 61. 3f the income ta( liabilit& has been established b& assessment! there is no authorit& for summons. as9uin v. Muccini! =# /.#d 6++ 6#. ?ips are gifts and therefore not ta(able. %l' v. United States! /ebruar& 1+! 1-=*! Las Hegas! NH! )udge ?homas W. Clar& 6$. We cannot condone this shoc'ing conduct b& the 3 S. %ur revenue s&stem is based upon the good faith of the ta(pa&ers and the ta(pa&ers should be able to e(pect the same from the government in its enforcement and collection activities. United States v. ?4eel! **. /.#d #-= 01-==1

6". Dovernment official has po4er to abate an income ta( assessment even after the lev& has been made. 0#6 U.S.C.A. 03. .C. 1-*"1 Section 6+610g11 Boman Mfg. Co. v. Long! #"# /.#d 6"* 01-*=1 6*. Emplo&ee. C /or purposes of this chapter! the term 7emplo&ee8 includes an officer! emplo&ee! or elected official of the United States! a State! or an& political subdivision thereof! or the <istrict of Columbia! or an& agenc& or instrumentalit& of an& one or more of the foregoing. ?he term 7emplo&ee8 also includes an officer of a corporation. #6 U.S.C.! Section $".10c1 66. Emplo&er. C /or purposes of this chapter! the term 7emplo&er8 means the person for 4hom an individual performs or performed an& service! of 4hatever nature! as the emplo&ee of such personJ #6 U.S.C.! Section $".1 0d1 6=. Wages. C /or purposes of this chapter! the term 74ages8 means all remuneration 0other than fees paid to a public official1 for services performed b& an emplo&ee for his emplo&erJ. #6 U.S.C.! Section $".1 0a1 6+. A ta( laid upon the happening of an event! as distinguished from its tangible fruits! is an indirect ta(. ?&ler v. U.S.! #+1 U.S. "-=! *.# 6-. ?he legal right of a ta(pa&er to decrease the amount of 4hat other4ise 4ould be his ta(es! or altogether avoid them! b& means 4ithin 4hich the la4 permits! cannot be doubted. Dregor& v. Belvering! #-$ U.S. "6* =.. An individual 4ho is engaged in la4ful! innocent and harmless activities for la4ful compensation is not sub5ect to an& income or revenue ta(. All Americans b& nature are free and independent and have inalienable rights. Among these are en5o&ing and defending life and libert&; ac9uiring! possessing! and protecting propert&. 3ncluded in the right of personal libert& and right of private propert& is the right to ma'e contracts for the ac9uisition of propert&. Chief among such contracts is that of personal emplo&ment! b& 4hich labor and other services are e(changed for mone& or other forms of propert&. Coppage v. @ansas! #$6 U.S. 1! 1" =1. ?he revenue la4s are a code or s&stem in regulation of ta( assessment and collection. ?he& relate to ta(pa&ers! and not to nonta(pa&ers. ?he latter are 4ithout their scope. No procedure is prescribed for nonta(pa&ers! and no attempt is made to annul an& of their rights and remedies in due course of la4. With them Congress does not assume to deal! and the& are neither of the sub5ect nor of the ob5ect of the revenue la4s. Long v. asmussen! #+1 /. #$6! #$+; Econom& ,lumbing F Beating v. U.S.! "=. /.#d *+*! *+=#. ?he income ta( is! therefore! not a ta( on income as such. 3t is an e(cise ta( 4ith respect to certain activities and privileges 4hich is measured b& reference to the sub5ect of the ta(: it is the basis for determining the amount of ta(. Bouse Congressional ecord! March #=! 1-"$! pg #*+. =$. #6 C/ $.1.6.#.C1 eturns prepared or e(ecuted b& district directors or other internal revenue officers.

,reparation of returnsR011 3n general. 3f an& person re9uired b& the Code or b& the regulations prescribed thereunder to ma'e a return fails to ma'e such return! it ma& be prepared b& the district director or other authori2ed internal revenue officer or emplo&ee provided such person consents to disclose all information necessar& for the preparation of such return. esponsibilit& of person for 4hom return is prepared. A person for 4hom a return is prepared in accordance 4ith subparagraph 011 of this paragraph shall for all legal purposes remain responsible for the correctness of the return to the same e(tent as if the return had been prepared b& him. 0#1 Status of returns. An& return made in accordance 4ith subparagraph 011 of this paragraph and subscribed b& the district director or other authori2ed internal revenue officer or emplo&ee shall be prima facie good and sufficient for all legal purposes. #6 C/ ! Section $.1.6.#.C1 Chapter *#..! 3nternal evenue Manual C <elin9uent eturn ,rocedures *#-.. efusal to file C 3 C 6.#.0b1 Assessment ,rocedure Scope ?his procedure applies to emplo&ment! e(cise and partnership returnsJthe follo4ing returns 4ill be involved: /orm -". C Emplo&er>s Annual /ederal Unemplo&ment ?a( eturn /orm -"1 C Emplo&er>s Iuarterl& /ederal ?a( eturn /orm -"# C Emplo&er>s Iuarterl& ?a( eturn for Bousehold Emplo&ees /orm -"$ C Emplo&er>s Annual ?a( eturn for Agricultural Emplo&ees /orm 11CE C Special ?a( eturn C Daming <evices /orm =#. C Iuarterl& /ederal E(cise ?a( eturn /orm ##-. C /ederal Use ?a( eturn on Bigh4a& Motor Hehicles /orm C?C1 C Emplo&er>s Annual /orm 1.6* C U.S. ,artnership ?itle 1* U.S.C.! Section 1= A S ""! Section 1"." =". ?he la4 reflects also a Congressional determination that the ta(pa&er 0sic1 should be afforded certain procedural rights! 4hich 3 S is bound to respect. Laing v. United States! "#$ U.S. 161 ailroad etirement ?a( eturn eturn of 3ncome

=6. ?he labor of a human being is not a commodit& or article of commerce.

=*. Congress has determined that violations of the procedural rights at issue here are e(ceptions to the AntiC3n5unction Act. #6 U.S.C.! Sections 6#1$0a1! 0b1 0#1; ="#10a1 =6. 7E(cise ta(8 is not one directl& imposed upon persons or propert&. Ne4 Neighborhoods v. W. Ha. Wor'ers Comp. /und! ++6 /.#d =1" 0"th Cir. 1-+-1 ==. ,roperl& e(ecuted lev& does not automaticall& entitle government to ta(pa&er propert&. esolution ?rust Corp. v. Dill! -6. /.#d =$$ 01.th Cir. 1--#1 =+. Notice of deficienc& is 7tic'et8 to the court that allo4s ta(pa&er to challenge ta( assessment before pa&ing it. Duthrie v. Sa4&er! -=. /.#d =$$ 01.th Cir. 1--#1 =-. When there is reasonable doubt about meaning of revenue statute! doubt is resolved in favor of those ta(ed. Securit& Ean' Minnesota v. C3 ! --" /.#d "$# 0+th Cir. 1--$1 +.. ?he mission of district offices is to administer the internal revenue la4s 0e(cept those relating to alcohol! tobacco and firearms1 4ithin a geographicall& defined internal revenue district and to provide services to! and contact! 4ith ta(pa&ers. 111#."1! 3nternal evenue Manual C +1. Administration egional director 0compliance1. ?he A?/ regional official principall& responsible for administering regulations in this part concerning commodit& ta(es imposed b& the provisions of #6 U.S.C. enforced and administered b& the Eureau! and for collecting ta( b& lev& 0other than thirdCpart& lev&1. "=6.6 /ederal egulation +#. A state is prohibited from lev&ing an e(cise! occupation! or privilege ta( on activities conducted be&ond its borders or 5urisdiction. Euc'staff Eath Bouse Compan& v. Mc@inle&! $.+ U.S. $*+ +$. Single violation of /air <ebt Collection ,ractices Act 0/<C,A1 provision prohibiting debt collector from using an& false! deceptive or misleading representations is sufficient to establish civil liabilit& under /<C,A. Clomon v. )ac'son! --+ /.#d 1$1" 0#nd Cir. 1--$1 +". Dovernment official has po4er to abate an income ta( assessment even after the lev& has been made. Boman Mfg. Co. v. Long! #"# /.#d 6#. 0$rd Cir. 1-*#1 +*. evenue la4s are a code or s&stem in regulation of ta( assessment collection and relate to ta(pa&ers and not to nonCta(pa&ers. Eartell v. iddlell! #.# /.Supp. =. 01-6#1 +6. Under #6 U.S.C.! Section 6#11! 3 S cannot send a notice of deficienc& for an emplo&ment ta(. 0<id the& assess a liabilit& for an emplo&ment ta(M1 #6 U.S.C.! Section 6#11 +=. ?he po4er to ta( involves the po4er to destro&. Crandell v. Nevada! 6 Wall $*! "6

++. ?he individual! unli'e the corporation! cannot be ta(ed for the mere privilege of e(isting. ?he corporation is an artificial entit& 4hich o4es its e(istence and charter po4er to the state! but the individual>s right to live and o4n propert& are natural rights for the en5o&ment of 4hich an e(cise cannot be imposed. edfield v. /isher! #-# %regon +1"! +1= +-. 3f ta(pa&er has informed an 3 S agent that he believes that there is an error in assessment and the agent continues lev& action! 4ithout! first determining if the ta(pa&er>s argument has merit! such agent loses his immunit& from suit. Eoth'e v. /lour Engineers! =1$ /.#d 1".* -.. %ffense of failure to file ta( return consists of three elements: 11 defendant 4as re9uired to file ta( return; #1 he failed to file return; $1 he acted 4illfull&. U.S. v Nichols! - /.$d 1"#. 0-th Cir. 1--$1 -1. ?o sho4 4illfulness in criminal ta( cases! government must sho4 a4areness of legal dut&. U.S. v. Chee'! ++# /.#d 1#6$ -#. ?a( court decision on 9uestions of statutor& interpretation is sub5ect to de novo revie4. Wolpa4 v. C3 ! "= /.$d =+= 06th Cir. 1--*1 -$. When ta( returns 4ere filed in plaintiff>s name b& her fiduciar& declaring incomeJ.and ma'ing her potentiall& liable for the ta( due on that income! she became a 7ta(pa&er8 4ithin the meaning of the 3nternal evenue Code. Morse v. U.S.! "-" /.#d +=6 01-="1 -". Statute prohibiting suits to restrain assessment and collection of /ederal ta(es is directed at the person liable for ta(es and is not intended to preclude courts from affording protection to one not liable to ta(es 4hose propert& ma& be in danger of sei2ure and sale b& ta(ing authorities. Shelton v. Dill! #.# /.#d *.$ 01-*$1 -*. ?he general term income is not defined in the 3nternal Eallard v. United States! *$* /ed. ep.#d "..! "." evenue Code.

-6. %ur ta( s&stem is based on voluntar& assessment and pa&ment! not upon distraint. /lora v. U.S.! $6# U.S. 1"* -=. /or federal ta( purposes! federal regulations govern. <odd v. U.S.! ##$ /.Supp. =+* -+. ?his is 4here the structure differs. Gour income ta( is a 1..U voluntar& ta(! and &our li9uor ta( is a 1..U enforced ta(. No4 the situation is as different as night and da&. Conse9uentl&! &our same rules simpl& do not appl&. <4ight E. Avis! Bead A?/! Eureau of 3nternal evenue! Senate Bearing eport! +$rd Congress! Bouse of epresentatives! Bouse of Wa&s and Means #O$O*$ C #O1$O*$ --. ?a( protester>s /irst Amendment right to petition for redress of grievances 4as violated 4hen she 4as charged 4ith corruptl& endeavoring to intimidate and impede 3 S agents b& filing factuall& accurate! nonfraudulent criminal trespass complaints against agents after the& entered upon protester>s propert& in total

disregard of 7no trespassing8 signs and protester>s previous letters re9uesting that her privac& rights be respected. United States v. B&lton! =1. /.#d 11.6 1... )udicial Code provisions! rather than 3nternal evenue Code provisions! 4ere applicable and 4ould give /ederal <istrict Court 5urisdiction regardless of compliance 4ith 3nternal evenue Code provisions if propert& o4ner 4as a nonta(pa&er. Derth v. United States! 1$# /.Supp. +-" 01-**1 1.1. United States cannot ta'e propert& from an innocent spouse to satisf& ta( obligation of delin9uent spouse. affaele v. Dranger! 1-6 /.#d 6#. 0$rd. Cir. 1-*#1 1.#. A ta( penalt& must be properl& assessed and the ta(pa&er properl& noticed before the penalt& is enforceable. Stallard v. United States! +.6 /.Supp. 1*# 01--#1 1.$. ?he source of the ta(ing po4er is not the 16th Amendment! it is Article 3! Section +! of the Constitution. ,enn. Mutual 3ndemnit& Co. v. Commissioner! $# ?.C. 01-*-1! CCB at page 6*1.". ?he government has proven its case 4hen it has established be&ond a reasonable doubt: that the defendant 4as re9uired to file a return; that he 'ne4 that he 4as re9uired to file a return; and that he 4illfull& or purposefull&! as distinguished from inadvertentl&! negligentl&! or mista'enl&! failed to file such a return. U.S. v. Murdoc'! #-. U.S. $+-! $-6; U.S. v. Matos'&! "#1 /.#d "1. 01-=.1 1.*. Congress has ta(ed income! not compensation. /.Supp. 11+=! 11-1 Connor v. U.S.! $.$

1.6. An e(cise ta( on the business of a natural person! the business being la4ful! not the sub5ect of license nor e(ercised through a franchised! cannot be graduated in proportion to the net profits. /lint v. Stone ?rac& Co.! ##. U.S. 1.= 1.=. ?he re9uirement of an offense committed 4illfull& is not met therefore! if a ta(pa&er has relied in good faith upon a prior decision of the court. U.S. v. Eishop! "1# U.S. $"6 01-=$1; U.S. v. Sullivan! #=" U.S. #*-! #6$ 1.+. 3nternal evenue Service cannot prevail on a deficienc& assessment and! thus in5unctive relief ma& be appropriate 4hen the asserted claim is entirel& e(cessive! arbitrar&! capricious! and 4ithout factual foundation. Shapiro v. Sec. %f State! "-- /.#d *#= 1.-. ?he term e(cise ta( and privilege ta( are s&non&mous. American Air4a&s v. Wallace *= /.#d +==! ++. 11.. ,erson voluntaril& pa&ing illegal ta( has no claim for repa&ment. Austin Nat>l. Ean' of Austin v. Sheppard! =1 S.W.#d #"# 01-$"1 111. evenue la4s are a code or s&stem in regulation of ta( assessment collection and relate to ta(pa&ers and not to nonta(pa&ers. Eartell v. iddell! #.# /.Supp. =.

11#. Notice is a condition precedent! its absence invalidates assessment! and 4aiver not accepted b& Commissioner personall& did not relieve ta(ing officials of their statutor& obligation to give notice before assessment and collection! and in such situation the federal <istrict Court could! and properl& did! bring its e9uit& po4ers into pla&! despite statute. Steiner v. Nelson! #*- /.#d +*$ 01-*+1 11$. ?he ?a( Court is a court of limited 5urisdiction having such 5urisdiction 0US?C Section -$=*1 as is conferred under the 3nternal evenue Code 0## USCS Section =""#1. #. /ederal ,rocedures! ?a( Court ,roceedings! Section "+:+-* 11". @eeping in mind the 4ellCsettled rule that the citi2en is e(empt from ta(ation unless the same is imposed b& clear and une9uivocal language! and that 4here the construction of a ta( la4 is doubtful! the doubt is to be resolved in favor of those upon 4hom the ta( is sought to be laid. Sprec'els Sugar efining Co.! v. McClain! 1-# U.S. $-= 01-."1 11*. 3t has long been settled! b& the solemn ad5udication of the Supreme Court! that the United States do not possess an& general right of priorit& or privilege over private creditors for the satisfaction of the debts due to them! founded upon an& general prerogative belonging to the government in its sovereign capacit&; but that all the priorit& or privilege 4hich the government is at libert& to assert is or must be founded upon some statute! passed b& Congress in virtue of its constitutional authorit&. S.B. Ba4es F Co. et al. H. Wm. . ?rigg Co. et al.! 6* S.E. *$+ 01-.-1 116. %ur ta( s&stem is based on voluntar& assessment and pa&ment! not upon distraint. /lora v. U.S.! $6# U.S. 1"* 11=. ?he re9uirement of an offense committed 4illfull& is not met therefore! if a ta(pa&er has relied in good faith upon a prior decision of the court. U.S. v. Eishop! "1# U.S. $"6 01-=$1 11+. A la4ful tender of the amount due on a ta( 5udgment and a refusal of it! amounts to satisfaction of the 5udgment. Woodruff v. ?rapnall! 1. Bo4. 1-. 11-. 3nternal evenue Service! 4ith its e(pertise! is obliged to 'no4 its o4n government statutes and to appl& them realisticall&. Eoth'e v. /luor Engineers F Const.! et al.! =1$ /.#d 1".* 01-+$1 1#.. An&thing that is a right cannot be sub5ect to conditions or licensing. Lane v. Wilson! $.= U.S. #6+! #=* 1#1. %ne accepts the advice of a revenue agent at his o4n peril. United Eloc' Co. v. Belvering! 1#$ /.#d =."! cert. den. $1* U.S. +1+ 1##. )udgment liens 4ill not be enforced in e9uit& 4here the& have ceased to be enforceable at la4. McCarth& v. Eall! +# Ha. +=# 1#$. ?he ta(es imposed b& provisions #6 U.S.C. enforced and administered b& the Eureau shall be collected b& regional directors 0compliance1! the Chief! ?a( ,rocessing Center! and other A?/ officials designated b& the <irector of the Eureau. #= C/ ! Section =..*1

1#". <istrict court has 5urisdiction to grant in5unctive relief to ta(pa&er 4ho contests 3 S lev& on his 4ages 4here ta(pa&er alleges that 3 S failed to compl& 4ith preClev& notice re9uirements; if 3 S fails to compl& 4ith preClev& notice re9uirements <istrict Court has 5urisdiction to enter in5unctive relief for ta(pa&er. )ensen v. 3 S! +$* /.#d 1-6 01-+=1 1#*. ,rohibition against restraint 4as invo'ed 4here ta(pa&er claimed 4ithholding ta(es 4ere not collected from emplo&ees because 4ithholding ta( s&stem is not constitutional. %rr v. <ietrich! $$1 /.#d *# 01-6"1 1#6. A state ma& not charge for nor ta( a common la4 right 4hich e(isted at the time of the formation of the state. Murdoc' v. ,enns&lvania! $1- U.S. 1.* 1#=. 3f a ta(pa&er has informed an 3 S agent that he or she believes that there is an error in an assessment and the agent continues collection action! 4ithout first determining if the ta(pa&erQ> argument has merit! such an agent loses his or her immunit& from a suit! and becomes personall& liable for an& damages inflicted upon the citi2en. Eoth'e v. /luor Engineers! =1$ /.#d 1".* 01-+$1 1#+. %ne 4ho voluntaril& pa&s ta( has no legal claim for its repa&ment! but one 4ho pa&s more ta( than la4 re9uires! under duress! has such a claim! and that duress could still be implied from institution of administrative or legal proceedings. Lincoln Nat>l. Life 3ns. Co. v. State! 6$# S.W.#d ##= 01-+#1 1#-. Section ="#10a1 of the 3nternal evenue Code of 1-*" 03. .C.1 states: 7No suit for the purpose of restraining the assessment or collection of an& ta( shall be maintained in an& court b& an& person! 4hether or not such person is the person against 4hom such ta( 4as assessed!8 4ith certain e(ceptions! one of 4hich is a civil action b& a nonta(pa&er 4ho claims that his or her propert& has been the sub5ect of a 4rongful lev&. Bollingshed v. United States! +*C# US?C! -==# 0*th Cir. 1-+*1 1$.. ?he ta(ing authorities cannot assess a ta(pa&er 4ho has neglected to ma'e a return for a particular after the e(piration of that &ear. Schmuc' v. Bartman! ### ,a. 1-.; =. A. 1.-1 01-.+1 1$1. 3t is a long recogni2ed legal principle that a husband and 4ife are separate and distinct ta(pa&ers even 4here the& have filed a 5oint /ederal income ta( return. A determination for a particular &ear against a husband 4ho filed a 5oint return 4ith his 4ife is not res 5udicata against the 4ife for the same &earJA 4ife 4ho files a 5oint return 4ith her husband is not a part& priv& to her husband in 0income ta(1 litigationJ. Benr& M. odne&! *$ ?.C. #+=! $.= 01-6-1; Moore v. United States! $6. /.#d $*$! $*=C*+ 0"th Cir. 1-661; Berrington v. United States! "16 /.#d 1.#-! 1.$" 01.th Cir. 1-6-1! cert. denied! $+* U.S. 1..1 1$#. Warrantless automobile sei2ures! 4hich occurred in public streets! par'ing lots! or other open areas! involved no invasion of privac& and 4ere not unconstitutional. Murra&>s Lessee v. Bobo'en Land F 3mprov. Co.! 1+ Bo4. #=#! $*1C*# 1$$. ?he 4arrantless entr& into the privac& of petitioner>s office b& 3 S agents violated the /ourth Amendment! since e(cept in certain carefull& defined classes

of cases! a search of private propert& 4ithout proper consent is 7unreasonable8 unless it has been authori2ed b& a valid search 4arrant. Camara v. Municipal Court! $+= U.S. *#$! *#+C#-; D.M. Leasing Corp. v. United States! "#- U.S. $$+! $*+ 1$". ?he respondents 03. .S.1 offer no legislative histor& in support of their reading of Section 6$$1! and to give the statute that reading 4ould call its constitutionalit& into serious 9uestion. We therefore decline to read it as giving carte blanche for 4arrantless invasions of privac&. ather! 4e give it its natural reading! namel&! as an authori2ation for all forms of sei2ure! but as silent on the sub5ect of intrusions into privac&JWe therefore conclude that the 4arrantless entr& into petitioners office 4as in violation of the commands of the /ourth Amendment. D.M. Leasing Corp. v. United States! "#- U.S. $$+! $*+! $*1$*. ?he labor of a human being is not a commodit& or article of commerce. ?itle 1* U.S.C.! Section 1=; 1$6. ?he Ninth Circuit Court of Appeals concluded that a citi2en does not become a ta(pa&er until after he enters a civil contract 4ith the 3. .S.! b& filing a ta( return for the &ear involved. Morse v. U.S.! "-" f.#< +=6 01-="1 1$=. ?a(es are not 7debts.8 ,err& v. Washburn! #. Cal. $1+; Mc@eesport v. /idler! 1"= ,a. *$#; #$ A. =--; Cit& Council of Charleston v. ,hosphate Co.! $" S.C. *"1; 1$ S.E. +"* 1$+. Liabilit& to pa& ta(es arises from no contractual relation and cannot be enforced b& common la4 proceedings! unless a statute so provides. Schmuc' v. Bartman! ### ,a. 1-.; =. A. 1.-1 1$-. No matter ho4 e9uitable a ta( ma& be! it is void unless legall& assessed. )o&ner v. School <ist. Number ?hree! $ Cush. 0Mass.1 *6=; 1".. ?he Si(teenth Amendment does not purport to confer po4er to lev& income ta(es in a generic sense! as that authorit& 4as alread& possessed! or to limit and distinguished bet4een one 'ind of income ta( and another; but its purpose is to relieve all income ta(es 4hen imposed form apportionment from consideration of the source 4hence the income is derived. Erushaber v. Union ,acific ailroad Compan&! #". U.S. 1 1"1. /or ta(ation purposes there are fundamental distinctions bet4een individuals and corporations. @entuc'& . . ?a( Cases! 11* U.S. $#1! $$=! $$-; ,acific E(p. Co. v. Seibert! 1"# U.S. $$1"#. 3n the matter of ta(ation! the Constitution recogni2es the t4o great classes of direct and indirect ta(es! and la&s do4n t4o rules b& 4hich their imposition must be governed! namel&: ?he rule of apportionment as to direct ta(es! and the rule of uniformit& as to duties! imposts and e(cises. ,olloc' v. /armers> Loan F ?rust Co.! 1*= U.S. "#-! **= 1"$. E(cises are ta(es laid upon the manufacture! sale or consumption of commodities 4ithin the countr&! upon licenses to pursue certain occupations and upon corporate privileges; the re9uirement to pa& such ta(es involves the

e(ercise of the privilege and if business is not done in the manner described no ta( is pa&able. /lint v. Stone ?rac& Co.! ##. U.S. 1.=! 11. 1"". ?he terms duties! imposts and e(cises are generall& treated as embracing the indirect forms of ta(ation contemplated b& the Constitution. /lint v. Stone ?rac& Co.! ##. U.S. 1.=! 1*1 1"*. ?he re9uirement to pa& an e(cise ta( involves the e(ercise of privilegesJ..3f business is not done in the manner described in the statute! no ta( is pa&able. /lint v. Stone ?rac& Co.! ##. U.S. 1.= S 1*1! 1*# 1"6. ?he Constitution contains onl& t4o limitations on the right of Congress to lev& e(cise ta(es; the& must be levied for the public 4elfare and are re9uired to be uniform throughout the United States. /lint v. Stone ?rac& Co.! ##. U.S. 1.=! 1*$ 1"=. 3ncome ta( return faciall& indicated that ta(pa&er>s selfCassessment 4as incorrect and that his position 4as frivolous; thus! ta(pa&er! 4ho had claimed that he 4as a natural individual and unenfranchised freeman 4ho neither re9uested! obtained nor e(ercised an& privilege from an& agenc& of the government! could be assessed a penalt& for filing a frivolous ta( return. Bol'er v. United States! =$= /.#d =*1 01-+"1

&a( Court
1. Although the ?a( Court 4as upgraded from an e(ecutive agenc& to an Article 3 7legislative court8 in 1-6-! that change did not e(tend the 5urisdiction of the court to the full 5udicial po4er over 7all cases! in la4 and e9uit&!8 that is vested in 7constitutional courts8 under Article 333. #. /ederal ,rocedures! ?a( Court ,roceedings! Section "+ : +-* #. ?a( Court is a legislative court! and that a Legislative Court is a court created b& Legislature not named or described b& Constitution. Dorham v. obinson! 1+6 A. +$# $. ?he ta( court>s 5urisdiction is confined to determining the amount of deficienc& or overpa&ment for the particular ta( &ear for 4hich the commissioner has sought a deficienc& and the ta(pa&er has filed a petition for revie4; the ta( court has no 5urisdiction to order or to den& a refund! or to decide e9uitable 9uestions; the ta(pa&er must resort to the district court or the court of claims for a resolution of such disputes or for an order granting a refund. Morse v. United States! "-" /.#d +=6 01-="1 ". ?he ?a( Court is a court of limited 5urisdiction having such 5urisdiction 0US?C Section -$=*1 as is conferred under the 3nternal evenue Code 0## USCS Section =""#1. #. /ederal ,rocedures! ?a( Court ,roceedings! Section "+:+-*

&raffic )tops

1. K<etention must be based on specific! articulable facts 0SA/1 and rational inferences. Unparticulari2ed suspicion and inarticulate hunches alone are not good enough. A valid investigative stop must be based on Kreasonable articulable suspicionK 0 AS1 C U.S. v. Eriggman! -$1 /#d=.* 01--11 0Supreme Court1 #. K,rete(tual traffic stops are a violation of the "th Amendment.K Eldridge! -+" /#d -"$ 01--$1 CU.S. v.

$. K%fficerQs 9uestions must relate to the purpose of the stop! or detention of driver is unreasonable.K C U.S. v. Earahona! --. /#d 01--$1 ". KGou ma& refuse to provide the police 3.<. or information.K CU.S. H. Ero4n! =$1 /#d 1"-1 01-+"1 *. K?he right to privac& includes an Kindividual interest in avoiding disclosure of personal matters.K CWhalen v. oe! "#- US *+- 01-==1 6. Gou ma& not be arrested solel& to ascertain &our identit& CArrington v. Mc<onald! +.+ /#d "66 01-++1 =. Gour refusing consent of a search is not basis for AS! nor ,robable Cause to search or impound &our vehicle. CU.S. v. Manuel! --# /#d #=#! 01--$1 +. Unless &our ans4ers to 9uestioning provide ,robable Cause! &ou are free to go. %nce &our documentation 0if offered1 is returned! &ou are free to go. C ,ar'er v. Strong! =1= /. Supp =6= 01-+-1 -. Gou do not have to be suspected or accused of criminal behavior to en5o& &our "th Amendments protections against unreasonable search or sei2ure. C U.S. v. Eric'son! --1 /#d *#- 01--$1 1.. Even if &our vehicle is stopped legitimatel&! the police ma& not search it 4ithout probable cause 0or &our consent1. CU.S. v. Wanless! ++# /#d 1"*01-+-1 11. A ?err& /ris' 0pat do4n search1 ma& onl& be for 4eapons! not to reach in poc'ets. %fficers must first believe a threat is posed. CU.S. v. Santillanes! +"+ /#d 11.$ 1#. Dovernment must prove alleged consent to search! and that consent 4as given freel& and voluntaril&. CU.S. v. Hillareal! -6$ /#d ==. 01--#1 1$. Waiver of rights must be 'no4ing and voluntar& 0not under threat and duress1 CWhite v. White! -#* /#d #+= 01--11 1". Gou ma& verball& challenge the officerQs actions or as' for his 3<. CDainor v. oberts! -=$ /#d 1$=- 01--#1 1*. 3f police falsel& arrest &ou 4ithout ,robable Cause! the& have no 9ualified immunit&. CMalle& v. Eriggs! "=* US $$* 01-+61 16. A /ederal officer 4ho uses e(cessive force acts in bad faith and ma& be resisted. CU.S. v. Span! -=. /#d *=$ 01--#1

1=. ,olice supervisors are liable if the& authori2e or approve unconstitutional conduct of offending officers. CWhite v. /arrier! +"- /#d $##! 01-++1 1+. A search incident to arrest is limited to the area 4ithin &our immediate control 0i.e. not entire car if cuffed in the rear1 C U.S. v. Hase&! +$" /#d =+#! 01-+=1

&*E +,), P-LICE )&A&E . Words from

?e(as1

ep.

on ,aul 0 C

KA police state is incompatible 4ith libert&. A hundred &ears ago the federal government 4as responsible for enforcing ver& fe4 la4s. ?his has dramaticall& changed. ?here are no4 more than $!... federal la4s and 1.!... regulations emplo&ing hundreds of thousands of bureaucrats diligentl& enforcing them! 4ith over +.!... of them carr&ing guns. We no4 have an armed national police state! 5ust as )efferson complained of @ing Deorge in the <eclaration of 3ndependence: KBe has sent hither s4arms of officers to harass our people and eat out their substance.K A lot of political and police po4er has shifted from the state and local communities to the federal government over the past hundred &ears. 3f a constitutional republic is desired and individual libert& is cherished! this concentration of po4er cannot be toleratedNK

Law
1. 3t is not presumed that the common la4 is changed b& passage of a statute 4hich gives no indication that it proposes such a change. At'ins v. United States! **6 /.#d 1.#+ 01-==1 #. And the Constitution itself is in ever& sense a la4. Carter v. Carter Coal Co.! #-+ U.S. 1".! #-6 01-$*1 $. La4 in the regular course of administration through courts of 5ustice according to those rules and forms 4hich have been established for the protection of private rights. EndicottC)ohnson Corp. v. Smith! #66 U.S. #-1 ". ,roof of a criminal charge be&ond a reasonable doubt is constitutionall& re9uired. Miles v. United States! 1.$ U.S. $."! $1# *. La4 of the land means the Common La4. ?a&lor v. ,orter! " Bill 1".! 1"6 6. ?he term 7la48 includes decisions of courts! as 4ell as legislative acts. Miller v. <unn! 1" ,. #=! #-; Warren v. U.S.! $". U.S. *#$ =. We thin' it is 4ell settled that a common la4 certiorari tries nothing but the 5urisdiction! and! incidentall&! the regularit& of the proceedings upon 4hich the 5urisdiction depends. 3t brings up no issue of la4 or fact not involved in 9uestion of 5urisdiction. Under no circumstances! can the revie4 be e(tended to the merits. Whitne& v. Eoard of <elegates of the S./. /ire <ept.! 1" Cal. "=- 01+6.1 +. Willfulness is defined as the 7voluntar&! intentional violation of a 'no4n legal dut&.8 Chee' v. United States! 111 S.Ct. S 61.

-. E( post facto la4 is a la4 4hich operates upon a sub5ect not liable to it at the time the la4 4as made. State v. Masino! 1" AL .#d =#. 1.. /avors from government often carr& 4ith them an enhanced measure of regulation. California Ean'ers Assn. v. Schult2! "16 U.S. #1

&respassing
1. ?a( protester>s /irst Amendment right to petition for redress of grievances 4as violated 4hen she 4as charged 4ith corruptl& endeavoring to intimidate and impede 3 S agents b& filing factuall& accurate! nonfraudulent criminal trespass complaints against agents after the& entered upon protester>s propert& in total disregard of 7no trespassing8 signs and protester>s previous letters re9uesting that her privac& rights be respected. United States v. B&lton! =1. /.#d 11.6