USDC DNM - 12-Cv-147 MCA - LFG - Doc 4 - Response To Order To Show Cause - Revised 3 - S Signed

UNITED STATES DISTRICT COURT
for the
DISTRICT OF NEW MEXICO BRYAN JAMES STEINMETZ, Plaintiff v. JOHN J ROMERO, et. al. Defendant(s) ) ) ) ) ) ) ) ) ) )
Civil Action No. 12-cv-147 MCA / LFG
RESPONSE TO ORDER TO SHOW CAUSE; AND MOTION TO RECONSIDER ORDER TO DISMISS COMES NOW, Plaintiff Bryan James Steinmetz, and in response to This Courts Order to Show Cause and Memorandum Opinion and Order dated February 29, 2012, avers as follows: I. 1. RESPONSE TO ORDER TO SHOW CAUSE The United States Constitution, to which all judges have sworn under oath to uphold, guarantees all Citizens the right to Petition the Government for Redress of Grievances. This right is broad and cannot be restricted. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. United States Constitution; Amendment 1 (Emphases Added)
Plaintiffs Response to Order to Show Cause and Motion to Reconsider Order of Dismissal Page 1 of 21 Steinmetz v. Romero, et. al. 12-cv-147 MCA / LFG
2.
The legislative branch is the first branch of the government. branch has sole authority to create laws.
The legislative
Nothing in the United States
Constitution gives legislative authority to any other branch of government nor allows any other branch to assume authority not granted to it. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Article 1, Section 1, United States Constitution Mr. Steinmetz cannot lay his finger on any part of the Constitution nor on any Act of Congress which has given the judiciary any authority to forbid any Citizen the right to Petition it for a Redress of Grievances. 28 USC 1651 only grants: a)The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. (b)An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction Indeed, our own Supreme Court has even stated, The right to petition the government extends to petitions of all three branches of government: the Congress, the executive and the judiciary. See California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972) 3. The judiciary is the third branch of the government, as enumerated in the United States Constitution, Article 3, Section 1. Congress has Constitutional authority over the judiciary. See Kinnear-weed Corporation, v. Humble Oil & Refining Company, United States Court of Appeals, Fifth Circuit-441 F.2d 631 19, 20
(acknowledging that the legislative body, and not the judicial body, has control over law making and rule making ability). It cannot be agreeable to the principles and usages of the law to deny an indigent, pro se litigant the Right to Petition his government for Redress of Grievances. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish (Emphases Added) The judiciary is charged with upholding the Supreme Law, the Constitution of the United States as enumerated in Article 3, Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority (Emphases Added) The words shall and all are neither discretionary nor limited in their mandate. Mr. Steinmetz cannot lay his finger on any part of the Constitution nor on any Act of Congress which has limited the scope of this mandate. According to the
Supreme Court, "redress of grievances" is to be construed broadly: it includes not solely appeals by the public to the government for the redressing of a grievance in the traditional sense, but also, petitions on behalf of private interests seeking personal gain. See Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) 4. Mr. Steinmetz is alleging multiple violations of his Constitutionally protected Rights by all of the named defendants. In the most recent so called Adjudicatory hearing, Judge Romero 1) reiterated his Order denying Mr. Steinmetz the Right
to file pleadings in his defense and 2) denied Mr. Steinmetz the Right to call witnesses on his behalf. Judge Romero has and continues to act with an
absolute disregard for Black Letter Law and the Constitutional Rights of Mr. Steinmetz. 5. The present cause has absolutely nothing in common with In re Winslow, 17 F.3d 314, 318 (10th Cir. 1994). Firstly, In re Winslow implies just that and
nothing else; In regards to Rainsford J. Winslow and Winifred W. Winslow, Debtors. alterius. Instead of addressing the merits of this appeal, the Winslows have filed a brief attacking this court and the judicial system generally. In re Winslow, 17 F.3d 314, 318 (10th Cir. 1994). 3 To date, the Winslows have filed seventeen matters in this court.1 The allegations raised in each of these appeals and original proceedings are substantially similar. In each one, the Winslows have accused this court, the district court, and the bankruptcy court of victimizing them in pursuit of some larger conspiracy aimed at preventing them from obtaining a fair hearing on their grievances. In re Winslow, 17 F.3d 314, 318 (10th Cir. 1994). 4 Secondly, In the present case, Mr. Steinmetz has not attacked This Court or the 10th Circuit Court of Appeals. Thirdly, Mr. Steinmetz has not filed anything in the 10th Circuit Court of Appeals and only filed three matters in This Court in a four year period. This is not a history of repetitive filings and abuse of the judicial process Id. 1 6. While looking up This Courts quoted case law, Mr. Steinmetz also found some companion cases.
Inclusio unius est exclusio alterius.
Expressio unius est exclusio
Chief Judge Winder's response indicated that petitioner, who is a prisoner in the Utah State Prison, is an abusive litigant who has filed over fifty cases in district court since 1988. Most of the cases were dismissed. Also, most were repetitive or duplicative of other filings and many were without merit and frivolous. There are several district court cases still pending. In addition, petitioner has refused to accept mailings from the district court, and he has written threats, obscenities, or profanities on the refused mail. Werner, A/K/A Thomas v. the State of Utah; et. al. 32 F.3d 1446 3 Mr. Steinmetzs three pleadings in a four year period cannot possibly be equated with the alleged actions of Mr. Werner A/K/A Mr. Thomas. Mr. Steinmetz has been professional and courteous with both This Court and all of its staff. Mr. Steinmetz has not expressed any threats, obscenities or profanities to anyone in any of his pleadings. When a litigant abuses these privileges, filing restrictions are appropriate. Winslow, 17 F.3d at 315; see also In re Sindram, 498 U.S. 177, 179-80, 111 S.Ct. 596, 597, 112 L.Ed.2d 599 (1991) (although there is waiver of filing fees and costs for indigent litigants in order to promote interests of justice, goal of fairly dispensing justice is compromised when the court is forced to devote limited resources to processing repetitious and frivolous requests). A court may impose restrictions commensurate with its inherent power to enter orders "necessary or appropriate" in aid of jurisdiction. 28 U.S.C. Sec. 1651; see In re Winslow, 17 F.3d at 315; Johnson v. Cowley, 872 F.2d 342, 344 (10th Cir.1989). This court approves restrictions placed on litigants with a documented lengthy history of vexatious, abusive actions, so long as the court publishes guidelines about what the plaintiff must do to obtain court permission to file an action, and the plaintiff is given notice and an opportunity to respond to the restrictive order. See Ketchum v. Cruz, 961 F.2d 916, 921 (10th Cir.1992) (citing Tripati v. Beaman, 878 F.2d 351, 354 (10th Cir.1989)). Id. at 9 Since 1990, petitioner has filed twenty-two matters in this court.1 Ten matters have been filed this year. Including this action, fifteen of the matters have been affirmed, dismissed, or denied; the remaining seven are pending.
12 In addition to being litigious, petitioner is also abusive in his correspondence with this court.2 Although petitioner was not abusive in his early appeals, over time he has engaged in a pattern of abuse intensifying throughout the years. As in the district court, he has refused to accept mailings from this court, and he has written threats, obscenities, and profanities on the refused mail. When mail is addressed to petitioner as Robert Henry Werner, rather than as Redelk Ironhorse Thomas, petitioner crosses out the name of Robert Henry Werner and usually makes threatening or obscene comments regarding getting his name right. Also, he returns mail indicating that there is no inmate named Robert Henry Werner. On three occasions, petitioner has ripped up the pro se forms sent to him and returned them to the clerk's office.3 Petitioner has sent letters to the clerk of court threatening to sue him for alleged mishandling of his appeals or when orders are signed by the clerk of court rather than a judge. He has also threatened to file criminal charges against this court for an alleged mishandling of an appeal. Id. at 11, 12 Surely This Court does not consider Mr. Steinmetzs three sincere attempts to Petition This Court for Redress of Grievances to be likened to the abuses reported of Mr. Werner A/K/A/ Mr. Thomas. Mr. Steinmetz has treated all of the Judges and staff of This Court with the utmost respect. 7. This Court cannot possibly equate Mr. Steinmetzs Petitions for Redress of Grievances with that of Michael Sindram. The present cause has absolutely nothing in common with In re Sindram, 498 U.S. 177 (1991). Again, In re
Sindram implies just that and nothing else; In regards to Michael Sindram. Inclusio unius est exclusio alterius. Expressio unius est exclusio alterius. Pro se petitioner Michael Sindram seeks an extraordinary writ pursuant to 28 U.S.C. 1651, and requests permission to proceed in forma pauperis under this Court's Rule 39. This is petitioner's twenty-fourth filing before this Court in the October 1990 Term alone. Pursuant to our
decision in In re McDonald, 489 U. S. 180 (1989), we deny the motion for leave to proceed in forma pauperis. Petitioner is no stranger to this Court. In the last three years, he has filed 42 separate petitions and motions, including Page 498 U. S. 178 21 petitions for certiorari, 16 petitions for rehearing, and 2 petitions for extraordinary writs. [Footnote 1] Without recorded dissent, the Court has denied all of his appeals, petitions, and motions. Petitioner has nonetheless persisted in raising essentially the same arguments in an unending series of filings. Like the majority of petitioner's previous submissions to this Court, the instant petition relates to a speeding ticket that Page 498 U. S. 179 petitioner received on May 17, 1987, in Dorchester County, Maryland. Having already challenged his conviction for speeding in five different state and federal courts on 27 prior occasions, petitioner now requests that the Court issue a writ compelling the Maryland Court of Appeals to expedite consideration of his appeal in order that the speeding ticket may be expunged from his driving record. The petition for mandamus was filed less than three months after he filed his appeal with the Maryland court. In re Sindram - 498 U.S. 177 (1991) Mr. Steinmetz is not contesting a speeding ticket. He is contesting the actual harm and violence upon the persons and fundamental Constitutional Rights of both him and his daughters. Mr. Steinmetz has had his Right to parent his children removed in violation of a multitude of State and Federal Constitutional and Statutory protections and his children have been denied the positive influence that can only be provided by a loving and attentive father. Statistics abound which show that children removed from the influence of their fathers are 10 to 20 times more likely to end up in prison, on drugs, or committing suicide.
8.
In the only recorded dissent of the 42 dismissals of Mr. Sindrams petitions: We receive countless frivolous in forma pauperis filings each year, and, as a practical matter, we identify and dispense with them with ease. Moreover, indigent litigants hardly corner the market on frivolous filings. We receive a fair share of frivolous filings from paying litigants. Indeed, I suspect that, because clever attorneys manage to package these filings so their lack of merit is not immediately apparent, we expend more time wading through frivolous paid filings than through frivolous in forma pauperis filings. To single out Sindram in response to a problem that cuts across all classes of litigants strikes me as unfair, discriminatory, and petty. In re Sindram - 498 U.S. 181 (1991) Brennan, J., dessenting As Justice Brennan keenly pointed out in In re McDonald, see id. at 489 U. S. 185-186, the in forma pauperis statute permits courts only to dismiss an action that is in fact frivolous. See 28 U.S.C. 1915(d). That statute, however, does not authorize us prospectively to bar an in forma pauperis filing on the ground that the litigant's earlier filings in unrelated actions were frivolous. This Court's Rules are equally silent on the matter. Rule 39, which governs in forma pauperis proceedings, includes no provision allowing prospective denial of in forma pauperis status. While Rule Page 498 U. S. 182 42.2 permits assessing costs and damages for frivolous filings, it says nothing about saddling an indiscriminate litigant with what amounts to an injunction on future filings Some of our in forma pauperis filings are made by destitute or emotionally troubled individuals. As we struggle to resolve vexing legal issues of our day, it is tempting to feel put upon by prolific litigants who temporarily divert our attention from these issues. In my view, however, the minimal annoyance these litigants might cause is well worth the cost. Our longstanding tradition of leaving our door open to all classes of litigants is a proud and decent one worth maintaining. See Talamini v. Allstate Insurance Co., 470 U. S. 1067, 1070 (1985) (STEVENS, J., concurring).
By closing our door today to a litigant like Michael Sindram, we run the unacceptable risk of impeding a future Clarence Earl Gideon. This risk becomes all the more unacceptable when it is generated by an ineffectual gesture that serves no realistic purpose other than conveying an unseemly message of hostility to indigent litigants. I dissent. Justice BLACKMUN, with whom Justice MARSHALL joins, dissenting. Id. at 181, 182 (Emphases Added) 9. Mr. Steinmetzs three pleadings in This Court in a four year period do not constitute abuse or harassment. Indeed, the cases which This Court quote deal with litigants filing A. Mr. Steinmetzs complaint of June 2008, (08-cv-629 JB / WDS), (almost four (4) years ago), was a serious attempt to stop the litany of due process violations foisted upon him by the State courts because of his wifes malicious and blatantly false allegations. Indeed, Double Jeopardy being the second most egregious violation (behind the loss of his fundamental right to parent his children), Mr. Steinmetz sincerely petitioned This Court for Redress of Grievances because This Court is charged with protecting Citizens from blatant violations of the United States Constitution as enumerated in Article 3, Section 2. B. Judge Browning, in a very detailed Opinion stated that Mr. Steinmetz had not exhausted all State court options and therefore must go through the State court process before the Federal courts could hear the matter.
C.
In compliance with Judge Brownings Order, Mr. Steinmetz has filed pleadings in approximately 12 separate lawsuits1 in as many as six (6) State judicial jurisdictions2 since June 2008 in an attempt to obtain Redress for Grievances.
D.
Mr. Steinmetz wrote letters to the Executive branch of the State of New Mexico to Petition for Redress of Grievances. Mr. Steinmetz was told that the Governors and Lt. Governors Offices were restrained from assisting him due to the separation of powers.
E.
Mr. Steinmetz wrote letters to the various members of the Legislative branch of the State of New Mexico and the Federal Government to Petition for Redress of Grievances. Mr. Steinmetz was told that the State Senate and the State House of Representatives Office as well as the US
D-202-DM-2006-02985 D-202-DV-2006-01141 D-202-CV-2011-00510 D-202-CR-2009-02124 D-202-JQ-2011-00054 NMCA 29,034 NMCA 29,726 NMCA 31,746 NMSC 31,xxx Petition for Extraordinary Writ of Error Feb 2009 case # unknown to Mr. Steinmetz at time of filing of instant pleading NMSC 32,223 Petition for Writ of Cert - 2010 NMSC 33,xxx Petition for Writ of Mandamus Dec 12, 2011 case # unknown to Mr. Steinmetz at time of filing of instant pleading USDC NM 08-cv-629 JB / WDS USDC NM 11-cv-165 MCA / RHS USDC NM 11-cv-666 MCA / KBM USDC NM 12-cv-147 MCA / LFG
2
The DM / DV are one jurisdiction, Family Court. Each of the other cases, CV, CR and JQ are separate jurisdictions. The cause USDC NM 11-cv-165 MCA / RHS was an improper and late Removal attempt by Defendants New Mexico Public Defenders Office which is part of D-202-CV-2011-00510 and NMCA 31,746. Plaintiffs Response to Order to Show Cause and Motion to Reconsider Order of Dismissal Page 10 of 21 Steinmetz v. Romero, et. al. 12-cv-147 MCA / LFG
Congressmen were restrained from assisting him due to the separation of powers. F. Mr. Steinmetz has filed multiple Petitions for Redress of Grievances in both the New Mexico Court of Appeals (NMCA) and the New Mexico Supreme Court (NMSC), most recently on December 12, 2011 in the NMSC and October 3, 2011 in the NMCA. The NMSC denied Mr.
Steinmetzs Petition for Writ of Mandamus (which Judge Browning specifically ordered Mr. Steinmetz to pursue) in less than one (1) day. The NMCA has denied all of Mr. Steinmetzs prior Petitions for Redress of Grievances, the latest denial coming on March 09, 2012. G. In compliance with the direction of Judge Browning, Mr. Steinmetz has, over a four (4) year period, exhausted all State remedies for Redress of Grievances. The violence upon both the persons of Mr. Steinmetz and his daughters and their Constitutional Rights by the many State Officials is both egregious and ongoing. His three (3) Petitions for Redress of
Grievances, within a four (4) year period in This Court are neither abusive, malicious, harassing nor frivolous. 10. As stated above, there are only three (3) branches of government, the legislative, the executive and the judicial. The First Amendment to the United States
Constitution guarantees every Citizen the Right to Petition the Government for Redress of Grievances. Mr. Steinmetz has petitioned the legislative branch of both the New Mexico State and United States governments. Mr. Steinmetz has
petitioned the executive branch of the New Mexico State government.
Mr.
Steinmetz was told in all contacts that the Separation of Powers Doctrine prevented their assistance. Therefore, since the judiciary is the only form of government left to petition, Mr. Steinmetz comes to This Court AFTER having completely exhausted every State judicial avenue. 11. Mr. Steinmetz is sincerely Petitioning his Government for Redress of Grievances in a lawful manner in order to fight for and protect his daughters from the danger that their mother has put them in. Mr. Steinmetz has exhausted all State options as per Judge Brownings Order. The United States Supreme Court has stated in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 138 (1961), The right of petition is one of the freedoms protected by the Bill of Rights, and we cannot, of course, lightly impute to Congress an intent to invade these freedoms. Also, The right of the people to inform their representatives in government of their desires with respect to the passage or enforcement of laws cannot properly be made to depend upon their intent in doing so. Id. at 139. It is neither unusual nor illegal for people to seek action on laws in the hope that they may bring about an advantage to themselves. This Court has expressly recognized this fact in its opinion in United States v. Rock Royal Co-op., Id. 12. Again, the United States Supreme Court has stated in California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972), The present case is akin to Eastern Railroad Conference v. Noerr Motor Freight, 365 U. S. 127,
.We rested our decision on two grounds:.(2) "The right of petition is one of the freedoms protected by the Bill of Rights, and we cannot, of course, lightly impute to Congress an intent to invade these freedoms." Id. at 365 U. S. 138..We followed that view in United Mine Workers v. Pennington, 381 U. S. 657, 381 U. S. 669-671. Id. at 509, 510. The same philosophy governs the approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition. See Johnson v. Avery, 393 U. S. 483, 393 U. S. 485; Ex parte Hull, 312 U. S. 546, 312 U. S. 549. Id. at 511 13. In regards to Judicial Immunity, Mr. Steinmetz can only aver that this principle goes against the very fabric of the Constitutional Republic that our Founding Fathers bled and died to create. There also is a plethora of case law that can be quoted to refute judicial immunity and that orders from judges acting without authority are nullities. "No one is bound to obey an unconstitutional law, and no courts are bound to enforce it." 16 Am Jur 2d, Sec 177 late 2d, Sec 256: "Not every action by any judge is in exercise of his judicial function. It is not a judicial function for a Judge to commit an intentional tort even though the tort occurs in the Courthouse." Cf. Vickrey v. Dunivan, 1955, 59 N.M. 90, 279 P.2d 853. Yates Vs. Village of Hoffman Estates, Illinois, 209 F.Supp. 757 (N.D. Ill. 1962) "There are two exceptions to absolute judicial immunity: (1) when the judge's actions are taken outside his role as a judge,
i.e., entirely non-judicial conduct, or (2) when the judge's actions are taken in the complete absence of jurisdiction." [*** See also Mireles, 502 U.S. at 11-13; Stein, 520 F.3d at 1195 ([A]n act taken in excess of a court's jurisdiction is not to be confused with an act taken in the complete absence of all jurisdiction.).] Strand and Allen do not argue that the judge's actions were taken outside his role as a judge. Instead, they only argue that Dawson was acting in complete absence of all jurisdiction. "[T]he necessary inquiry in determining whether a defendant judge is immune from suit is whether at the time he took the challenged action he had jurisdiction over the subject matter before him." [Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978).] Golden Meadows v. Strand was filed in the Second District Court, a court of proper jurisdiction. The case has had many pleadings, motions, affidavits, and orders entered upon the docket beginning in August 2007 and continuing through May 19, 2011. The state court has subject matter jurisdiction in the state case as evidence[d] by the state docket sheet showing no motion contesting subject matter jurisdiction and the original Verified Complaint which states"[j]urisdiction obtains pursuant to Utah Code Ann. 78-3-4." Dawson had jurisdiction of the subject matter before him in the state court, and did not act in absence of all jurisdiction. Accordingly, he is entitled to absolute judicial immunity Strand v. Dawson, 2011 U.S. Dist. LEXIS 115367 (C.D. Utah Oct. 4, 2011)
Mr. Steinmetz specifically filed a motion contesting subject matter jurisdiction and jurisdiction over his person on June 30, 2011 and July 14, 2011. Judge Romero denied Mr. Steinmetzs pleadings and gave them back to Mr. Steinmetz. Judge Romeros actions have been and continue to be intentionally tortious and are therefore completely absent of subject matter jurisdiction and authority, therefore his orders are null and void.
Under Federal law which is applicable to all states, the U.S. Supreme Court stated that if a court is "without authority, its judgments and orders are regarded as nullities. They are not
voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers." Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828)
The State Childrens Court under Judge John J Romero has completely denied Mr. Steinmetz of equal access by refusing to allow him to file mandatory pleadings in his defense, which the State Appellate courts will look upon as Mr. Steinmetz not preserving the issue for appeal.
judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere. Pennoyer v. Neff, 95 U.S. 714, 732-733 (1878). [World-Wide Volkwagen Corp. v. Woodson, 444 U.S. 286 (1980)]
Black's Law Dictionary, Sixth Edition, page 1574: Void judgment. One which has no legal force or effect, invalidity of which may be asserted by any person whose rights are affected at any time and at any place directly or collaterally. Reynolds v. Volunteer State Life Ins. Co., Tex.Civ.App., 80 S.W.2d 1087, 1092. One which from its inception is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind parties or support a right, of no legal force and effect whatever, and incapable of confirmation, ratification, or enforcement in any manner or to any degree. Judgment is a "void judgment" if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process.
Klugh v. U.S., D.C.S.C., 610 F.Supp. 892, 901. See also Voidable judgment.
Void judgments are those rendered by a court which lacked jurisdiction, either of the subject matter or the parties. See: Wahl v. Round Valley Bank, 38 Ariz. 411, 300 P.955 (1931) and Tube City Mining & Milling Co. v. Otterson, 16 Ariz. 305, 146 P. 203 (1914) and Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 2d 278 (1940).
Mr. Steinmetz avers that the NM CYFD committed major fraud upon him by initiating criminal charges in a civil setting against him and then refusing to notify him until eight (8) full weeks and several hearings had past, thereby denying him due process Void judgments generally fall into two classifications, that is, judgments where there is want of jurisdiction of person or subject matter, and judgments procured through fraud, and such judgments may be attacked directly or collaterally, Irving v. Rodriquez, 169 N.E.2d 145, (Ill. app. 2 Dis. 1960). See also: See Long v. Shorebank Development Corp., 182 F.3d 548 (C.A. 7 Ill. 1999) and Rook v. Rook, 353 S.E. 2d 756 (Va. 1987) and People ex. re. Brzica v. Village of Lake Barrington, 644 N.E.2d 66 (Ill.App.2 Dist. 1994).
Void order is nullity, without any legal effect, lacks any power and is invalid. See: Lubben v. Selective Service System Local Bd. No. 27, 453 F.2d 645, 14 A.L.R. Fed. 298 (C.A. 1 Mass. 1972) and Hobbs v. U.S. Office of Personnel Management, 485 F.Supp. 456 (M.D. Fla. 1980) and Holstein v. City of Chicago, 803 F.Supp. 205, reconsideration denied 149 F.R.D. 147, affirmed 29 F.3d 1145 (N.D. Ill. 1992).
Mr. Steinmetz, having exhausted all State avenues, is attempting to collaterally attack the unlawful and therefore void actions of the State Childrens court.
actions taken thereunder, and is vulnerable to any manner of collateral attack (thus here, by). No statute of limitations or repose runs on its holdings, the matters thought to be settled thereby are not res judicata, and years later, when the memories may have grown dim and rights long been regarded as vested, any disgruntled litigant may reopen old wound and once more probe its depths. And it is then as though trial and adjudication had never been. Fritts v. Krugh, Supreme Court of Michigan, 92 N.W.2d 604, 354 Mich. 97 (10/13/58). Mr. Steinmetzs contentions are that the State courts have been acting with complete disregard to Mr. Steinmetzs Constitutional Rights and that all of their orders are thus null and void for lack of due process and therefore devoid of jurisdiction.
A void judgment may be attacked, asserted or vacated at any time, in any court. See: Matter of Marriage of Welliver, 869 P.2d 653 (Kan. 1994) and Graff v. Kelly, 814 P.2d 489 (Okl. 1991) and City of Lufkin v. McVicker, 510 S.X.2d 141 (Twx.Civ.App.Beaumone 1973). A void judgment is one which has a mere semblance, but is lacking in some of the essential elements which would authorize the court to proceed to judgment, Henderson v. Henderson, 59 S.E.2d 227, (N.C. 1950). See Also: Mills v. Richardson, 81S.E.2d 409 (N.C. 1954) and Davidson Chevrolet, Inc. v. City and County of Denver, 330 P.2d 1116, certiorari denied 79 S.Ct. 609, 359 U.S. 926, 3 L.Ed. 2d 629 (Colo. 1958).
Relief from void judgment is available when trial court lacked either personal or subject matter jurisdiction, Dusenberry v. Dusenberry, 625 N.E.2d 458 (Ind.App. 1 Dist. 1993). See Also: relief assumed to be given, State ex re. Dawson v. Bomar, 354 S.W.2d 763, certiorari denied, (Tenn. 1962) and must be set aside Jaffe and Asher v. Van Brunt, S.D.N.Y.1994, 158 F.R.D. 278. II 14. 15. MOTION TO RECONSIDER ORDER TO DISMISS Mr. Steinmetz Restates and Incorporates paragraphs 1 13 above. In accordance with the commands of 28 USC 1915, Mr. Steinmetz properly filled for free process (IFP). Mr. Steinmetz is disabled as defined by Section 12102 of the Americans with Disabilities Act and receives public assistance, thus he qualifies as a disabled and indigent person under the law and is therefore entitled to free process. As stated above, Mr. Steinmetz is merely petitioning the
Government for Redress of Grievances, in the only lawful way he knows how, to obtain relief from the oppressive and ongoing persecution by State officials whose actions are devoid of anything resembling due process. Three (3)
Petitions in This Court in a four (4) year span cannot possibly be considered as frivolous3 or malicious4 by any definition. Mr. Steinmetz is not an empty-headed person nor are his Petitions to This Court lacking of any serious purpose. Mr.
3
Frivolous 1. characterized by lack of seriousness or sense: frivolous conduct. 2. self-indulgently carefree; unconcerned about or lacking any serious purpose. 3. (of a person) given to trifling or undue levity: a frivolous, empty-headed person. 4. of little or no weight, worth, or importance; not worthy of serious notice: a frivolous suggestion. http://dictionary.reference.com/browse/malicious Malicious 2. Law . vicious, wanton, or mischievous in motivation or purpose. http://dictionary.reference.com/browse/frivolous Plaintiffs Response to Order to Show Cause and Motion to Reconsider Order of Dismissal Page 18 of 21 Steinmetz v. Romero, et. al. 12-cv-147 MCA / LFG
Steinmetz has not written any of his three (3) Petitions for Redress of Grievances in a wanton or vicious manner and certainly has no mischievous intent. His only intent is to obtain relief from the wanton acts foisted upon him and his daughters by a multitude of State officials who are acting in complete absence of jurisdiction. 16. Part of Mr. Steinmetzs disability causes a great difficulty and impedance to Mr. Steinmetz in expressing his thoughts. This Court states that Steinmetzs Complaint is devoid of any allegations regarding most of the individually named defendants. Memo Opinion and Order at pg 7 2. Yet This Court also states This is the third time that Mr. Steinmetz, proceeding IFP and pro se. Id. At pg 2 2. A. Mr. Steinmetzs indigency prevents him from hiring an attorney and no one is willing to work for him pro bono, even though this is a matter of great public interest and importance, as it deals with the most basic and fundamental of Constitutional Rights of parenting ones children. B. Mr. Steinmetz was being mindful of the precious time of a Federal Judge in his 1983 Complaint (Doc 1) filed February 16, 2012; it was a concerted attempt to be as brief and concise as possible in order to not submit a Book for a US District judge to have to read. Mr. Steinmetz is not an attorney and is not able to articulate in the concise legalese that a trained attorney would. (Mr. Steinmetz acknowledges and
recognizes that pro se litigants are not afforded special accommodations and
must be treated the same as lawyers but under the Americans with Disabilities Act, (A.D.A. 2008), disabled litigants cannot be discriminated against. Section 12103 (2) of the A.D.A. 2008 defines State as including the District of Columbia. Section 12131 (1) (A) of the A.D.A. 2008 defines a public entity as any State or local government. Section 12132 of the A.D.A. 2008 states: Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. The United States District Courts are therefore included in the A.D.A. 2008 and cannot discriminate against Mr. Steinmetz). With that in mind, perhaps This Court would be willing to reconsider its decision to dismiss Mr. Steinmetzs Petition for Redress of Grievance and make a referral to the pro se division of the United States District Court and give the pro se division and Mr. Steinmetz time to amend his Complaint using proper case law and legal terms that would be acceptable to This Court. WHEREFORE, Mr. Steinmetz submits this Response to Order to Show Cause and Motion to Reconsider Order of Dismissal and requests that This Court: 1) not deny his Constitutionally guaranteed Right to Petition his Government for Redress of Grievances as enumerated in the First Amendment to the United States Constitution; and 2) reconsider its dismissal of Mr. Steinmetzs Complaint and refer him to the pro se division of the United States District Court; and 3) allow Mr. Steinmetz a reasonable time (30 days) to amend his Complaint.
Most Respectfully Submitted, Date: March 13, 2012 Signature of the attorney or unrepresented party
___/s/ Bryan J Steinmetz 03-13-2012__________ Bryan J Steinmetz PO Box 82694 Albuquerque, New Mexico 87198-2694 dr-steiny@hotmail.com 505-604-6556

USDC DNM - 12-Cv-147 MCA - LFG - Doc 4 - Response To Order To Show Cause - Revised 3 - S Signed

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UNITED STATES DISTRICT COURT

Civil Action No. 12-cv-147 MCA / LFG

Nothing in the United States

Inclusio unius est exclusio alterius.

Expressio unius est exclusio

petitioned the executive branch of the New Mexico State government.

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