COMMONWEALTH
OF MASSACHUSETTS
TRIAL COURT OF MASSACHUSETTS
DISTRICT COURT DIVISION OF
_______________ COUNTY
_______________ county,
SS.
Docket No. __________________
__________________________
COMMONWEALTH,
__________________________
Plaintiff
MOTION
v.
TO
DISMISS
__________________________
Defendant/Pro Se
__________________________
NOW
comes the Defendant,
_________NAME________,
and moves this Honorable Court to
dismiss the charge of Operating After
Suspension, pursuant M.G.L. c. 90
§
23, against defendant brought by the
Commonwealth for the following reasons:
On or about ___DATE____ the Registry
of Motor Vehicles (hereinafter “RMV”)
informed the defendant, __________________
(hereinafter “Defendant”), through
a computer-generated letter (copy
attached), that the RMV would be suspending
his driver license with information1,
provide by the Department of Revenue
Child Support Enforcement Division
(hereinafter “DOR”).
In that letter the RMV stated “Once
you have cleared your outstanding
obligation, you must present the Registry
of Motor Vehicles with an official
notice from the Child Support
Enforcement Division of the Massachusetts
Department of Revenue, stating
that you are in compliance with the
payment plan and are eligible or reinstatement”.
The RMV insinuated that the Defendant
owed child-support with no proof from
the DOR.
On _________ day of ______________
20_____, the defendant sent a letter
(copy attached) to the RMV through
the United States Postal Service via
“Express Mail” informing them that
the DOR was placing undue stress and
was trying to usurp his due process.
I further informed them that to the
best of my knowledge I didn’t owe
back child support. The defendant
further went on to inform the RMV
that the defendant had not
____________________________________________________________
1
Carroll v. Gillespie, 14 Mass.App.Ct.
at 20-21.
[I]nformation known to be [] sufficiently
unreliable or incomplete to
support a finding that it was unreasonable
to rely upon it without additional
information. See Griffin v. Dearborn,
210 Mass. 308, 313 (1911) (where defendant
knew that his horse was taken by G's
minor son, and did not know whether
the son
did so, as the son claimed, on order
from G, (t)he defendant's immediate
prosecution
of the son without any precedent investigation"
could be found to lack
reasonable grounds); Smith v. Eliot
Sav. Bank, 355 Mass. at 548, (where
defendant bank failed
to pursue information as to whereabouts
of S, in whose name
unauthorized withdrawals were made,
and teller identified the plaintiff
as forger
seven months after brief withdrawal
transaction, jury could have found
that identification was "so
suspect that a 'man of ordinary caution
and prudence' would
not have relied upon it," quoting
from Bacon v. Towne, 4 Cush. at 239.)
been found in
contempt of court for owing child-support
and
that there
was a trial date that was upcoming.
The RMV still suspended his license
at the request of the DOR with no
other proof than a computer-generated
letter.
The Defendant hereby states that the
DOR had NO court order stating that
Defendant was in the arrears or was
he in contempt of court.
According to the DOR, M.G.L. c 119A,
§
16, gives them the
authority to suspended a individuals
business, trade, professional,
recreational or motor vehicle license
or virtually any other license
or registration that a person has
legally obtained.
For the DOR and the RMV to implicate
and enforce M.G.L. c 119A,
§
16, in the manner in
which they chose against said
defendant, would with no doubt have
to violate ones rights under
the 5th, 7th
and 14th Amendments of
the United States Constitution,
along with Articles VII, XIV, XV of
the Massachusetts Constitution under
PART THE FIRST, A Declaration
of the Rights of the Inhabitants of
the Commonwealth of Massachusetts,
which are clearly established United
States and Massachusetts constitutional
rights2.
Although according to the Commonwealth
having a license is a privilege,
the suspending of a license without
a court order or a hearing on
an allegation is a clear violation
of one’s due process.
The defendant hereby asserts and declares
that M.G.L c. 119A,
§
163 is unconstitutional
for the following reasons;
Under the VII Amendment (part of the
“Bill of Rights”) of the United States
Constitution it states the following;
“In Suits at common law, where the
value in controversy shall exceed
twenty dollars, the right of
trial by jury shall be preserved,
and no fact tried by a jury, shall
be otherwise re-examined in any Court
of the United States,
than according to the rules of the
common law.”
While Article
XV in PART THE FIRST, A Declaration
of the Rights of the Inhabitants of
the Commonwealth of Massachusetts, in
the Massachusetts Constitution further
backs this Amendment by stating the
following;
_______________________________________________
2
Cook v. Sheldon 41 f.3d 73 (2nd Cir.
1994)
[5,6] For this purpose, “[a]
right is ‘clearly established’ if
it meets one of three tests:
(1) it is defined with reasonable
clarity; or (2) the Supreme Court
or this Circuit has affirmed its existence;
or (3) a reasonable defendant would
understand
form existing law that his acts were
unlawful”
3
YICK WO v. HOPKINS, 118 US 356, (1886)
Though the law itself be fair on its
face and impartial in
appearance, yet, if it is applied
and administered by public authority
with
an evil eye and an unequal hand, so
as practically to make unjust an
illegal discriminations between persons
in similar circumstances, material
to
their rights, the denial of equal
justice is still within the prohibition
of the Constitution. [373]
“In all controversies concerning property,
and in all suits between two or more
persons, except in cases
in which it has heretofore been otherways
used and practiced, the parties have
a right to a trial by jury;
and this method of procedure shall
be held sacred, unless,
in causes arising on the high seas,
and such as
relate to mariners' wages, the legislature
shall hereafter find it necessary
to alter it.”
Considering that Defendants child-support
is __________ dollars ($______.00)
per week, if the defendant was one
week in the arrears this would clearly
place him past the threshold of the
twenty dollars ($20.00) clause of
the VII amendment of the United States
Constitution.
After a careful examination of the
VII amendment and Article XV,
no where does it exempt the Commonwealth,
oblige or obligor, custodial
or non-custodial, husband or wife,
male or female or does it make any
special provision for any child-support
that is allegedly in the arrears but
to the contrary it clearly states
ALL controversies.
Considering that the DOR and Defendant
had two separate opinions on
what might have been owed, that without
doubt constituted a controversy
and for the Commonwealth not to provide
a jury trial violated Defendants clearly
established constitutional right.
For the RMV
to suspend the defendants driver license
or any other license by a request
from the DOR or any other third
party with no court order would violate
the defendants due process4
under the Fifth and Fourteenth Amendment
of the United State Constitution.
The
Fifth Amendment (part
of the “Bill of Rights”) states;
“No person
shall be held to answer for a capital,
or otherwise infamous crime,...
, nor be deprived of
life, liberty, or property, without
due process of law;
nor shall private property be taken
for public use,
without just compensation.”
While the Fourteenth Amendment
under section one states;
“All persons born or naturalized in
the United States and
subject to the jurisdiction thereof,
are citizens
of the United States and of the State
wherein they reside.
No State shall make or enforce any
law which
shall abridge the privileges or immunities
of citizens of the United States;
nor shall any State
deprive any person of life, liberty,
or property,
without due process of law; nor deny
to any person
within its jurisdiction the equal
protection of the laws.”
The RMV Registrar,
Kimberly Hinden, along with Commissioner
Alan Lebovidge and Deputy Commissioner
Rachel
____________________________________________________________
4
PORTER v. SINGLETARY 49 F.3rd 1483
(11th Cir. 1995)
Quoting Marshall v. Jerrico, Inc.
446 U.S. 238, 100 S.Ct. 1610, 64 L.Ed
2nd 182 (1980).
There the Supreme Court Said:
The Due process Claus entitles a person
to an impartial and disinterested
tribunal in both civil and criminal
cases. This requirement of neutrality
in adjudicative proceedings safeguards
the two central concerns of procedural
due process, the prevention of unjustified
or mistake deprivations and the promotion
of participation and dialogue by affected
individual in the decisionmaking
process... The neutrality requirement
helps to guarantee that life, liberty,
or
property will not be taken on the
basis of an erroneous or distorted
conception of the facts
or the law... At the same time, it
preserves both the appearance and
reality of fairness, “generating the
feeling, so important to a popular
government, that
justice has been done,”... by ensuring
that no person will be
deprive of his interested in the absence
of a proceeding in which he may present
his
case with assurance that the arbiter
is not predisposed to find against
him. [1488]
C. Madden for the DOR are state
actors5, acting under the
“color of law” they should have
know that suspending the defendant
drivers license was an arrestable
offense which would cause him a lose
of his liberty and then a loss of
his property defending these
offenses.
Defendant
again reiterates that according to
the RMV having a drivers license
is a “privilege” and with that said,
the Fourteenth Amendment further states
that;
“... No State shall make or enforce
any law which shall abridge
the privileges or immunities of citizens
of the United
States;”
It is clear, obvious and beyond a
shadow of a doubt that our legislators
knew or should have known that the
passing of M.G.L.
c 119A, §
16 could and would
abridge the “privileges” of
the citizens of the United States,
a clearly established constitutional
right guaranteed under the Fourteenth
Amendment, this egregious law would
ultimately usurp one’s due process
again guaranteed under the Fifth and
Fourteenth Amendments.
While on the subject of the Fourteenth
Amendment, Defendant would like
to draw this courts attention again
to a
____________________________________________________________
5
WALL v. KING 206 F. 2d 878
[4,5] But states can act only through
human beings; and it has long been
settled that
when a state clothes an individual
with official authority, and the official
commits an
abuse of power in the exercise of
that authority, his action in the
name of the state is state action
within the meaning of the prohibitions
of the
Fourteenth Amendment, even though
what he did was not authorized by
the laws of the
state. [882]
clause in
this amendment which states that;
“... nor deny to any person within
its jurisdiction the equal protection
of the laws.”
This clause makes no exception on
who shall be exempt from the “ equal
protection of the laws.”6,
but clearly states that “any person”
shall not be denied.
While the Commonwealth is passing
laws and erroneously enforcing them
through a force of threat, intimidation
and coercion7 to
protect an oblige, Defendant asks
where is the equal protection
of the law by the Commonwealth for
the obligor to protect him from
the oppression of the very government
whom he helped to institute?
In Article VII in PART THE FIRST,
A Declaration of the Rights of the
Inhabitants of the Commonwealth of
Massachusetts, in the Massachusetts
Constitution it distinctly made it
clear that our government is instituted
____________________________________________________________
6
YICK WO V. HOPKINS, 118 US 356, (1886)
“These provisions are universal in
their application, to all
persons within the territorial jurisdiction,
without regard to any
differences of race, of color, or
of nationality; and the equal protection
of the laws is a pledge of the protection
of equal law.” [369]
7
Sarvis v. Boston Safe Deposit &
Trust Co. 47 Mass.App.Ct. 86 (1999)
quoting Planned Parenthood League
of Mass., Inc. v. Blake, 417 Mass.
467,
cert. denied 513 U.S. 868 (1994);
"Under the MCRA, a `[t]hreat'.
. . involves the intentional
exertion of pressure to make another
fearful or apprehensive of injury
or
harm. `Intimidation' involves putting
in fear for the purpose of compelling
or deterring conduct. . . . [c]oerion
[is] `the application to another of
such force, either physical or moral,
as to constrain him to do against
his
will something he would not otherwise
have done.'"
for the Common good and not
for any private interest by stating
the following;
“Government is instituted for the
common good; for the
protection, safety, prosperity and
happiness of the
people; and not for the profit, honor,
or private interest of any one man,
family, or class of men:
Therefore the people alone have an
incontestable,
unalienable, and indefeasible right
to institute
government; and to reform, alter,
or totally change the same,
when their protection, safety, prosperity
and happiness
require it.”
As Defendant has previously stated,
it is apparent that our legislators
have taken it upon itself to pass
laws that would provide honor, protection,
prosperity, profit and safety for
a special class of men known as “obliges”
through the DOR, these obliges have
other aliases such as “females”, “mothers”
and “women”, which is a violation
of this clearly established constitutional
right and the Commonwealth, enforcing
these egregious laws through its state
actors, is teetering on the edge of
treason.
For the Commonwealth to suspend the
defendants license and subjecting
the defendant to a deprivation of
his life, liberty and property
through in illegal search and seizure
of his person, houses, papers
and possessions without his due
process of law would clearly violate
the Fourth Amendment of the
United States Constitution and Article
Fourteen in PART THE FIRST,
A Declaration of the Rights of the
Inhabitants of the Commonwealth of
Massachusetts, in the Massachusetts
Constitution.
These
are both clearly established constitutional
rights guaranteed by the Fourth Amendment
as follow;
“The right of the people to be secure
in their persons, houses,
papers, and effects, against
unreasonable searches and seizures,
shall not be violated, and no Warrants
shall issue, but upon probable
cause, supported by Oath or affirmation,
and particularly
describing the place to be searched,
and the persons
or things to be seized.”
Article Fourteen further guarantees
the defendant the same rights as previously
mentioned by stating;
“Every subject has a right to be secure
from all unreasonable searches, and
seizures, of his person, his houses,
his papers, and all his possessions.
All warrants, therefore, are
contrary to this right, if the
cause or foundation of them be not
previously supported
by oath or affirmation; and if the
order in the warrant to a civil
officer, to make search in suspected
places, or to arrest one or more suspected
persons, or to seize their property,
be not accompanied with a special
designation of the persons
or objects of search,
arrest, or seizure: and no warrant
ought to be issued but in cases, and
with the formalities prescribed by
the laws.”
With the foregoing said, the defendant
again declares
that M.G.L.
c 119A, §
16 is unconstitutional
and that the aforesaid motion clearly
established this. Therefore
the Defendant request and prays
that this Honorable Court dismiss
this action brought forth by the Commonwealth
with prejudice and furthermore
that this court order the above caption
matter dismissed for the insufficiency
of the
evidence and the sufficiently
unreliable information.
I certify under the penalties of perjury
that the aforementioned information
are herein true and accurate to the
best of my knowledge and belief.
__________,
200______
Respectively Submitted,
__________________________
________________________, Defendant
Defendant/Pro
se
Address: _______________________________
________________________________________
Phone:
_________________________
CERTIFICATE
OF SERVICE
I,
_______Defendant__________, Defendant,
hereby certifies that on ______________________
200_____, I served the within MOTION
TO DISMISS on the District Attorneys
Office located at: __________________________________,
Massachusetts ________ in the former
Hampden County by mailing a copy thereof
by delivering in hand also by mailing
a copy thereof by First Class and
Certified Registered Receipt this
_____ Day of _______, 20___.
Date:__________
RESPECTFULLY SUBMITTED,
____________________________
____________________________
Defendant/Pro se
Address:
_________________________
_________________________
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