More Case Law on the Right to Be a Parent 

 From: http://www.ancpr.org/caselaw.htm

 
Case Law

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 The following cases cited below typically involve many more issues than the one for which they are herein cited. The interpretation proffered preceding the citation is that of a number of individuals, and not necessarily an interpretation agreed upon by others. FOR YOUR PROTECTION, IT IS HIGHLY RECOMMENDED THAT YOU LOOK UP AND READ a cited case before you cite it in your own pleadings, to make sure that it is representative of what you are trying to do.

ANCPR now offers extensive and complete legal research including all the relavent case law for your particular situation.  Wether you are representing yourself, working with a lawyer, or simply want to understand your rights under the law, you should definitely consider this the following options. 

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You should also sheperdize these citations to make sure they are still good law.  Otherwise, you run the risk that the opposition or the court will evaluate your cited case and find something in it distinguishable from your case, or even usable against you. In some contexts this violates the rules of court as well as the voluntary ethical constraints you must labor under to effectively represent yourself Pro Se. It is generally preferable for you to quote in legal pleadings the verbatim pertinent wording from reading the case itself, followed by the volume/reporter designation/page/year citation, rather than to quote the general, and unofficial, summary by which the cases are stated below. The majority of the following cited decisions can be found in your local (and publicly available) county, state, city or college law library. Supreme court citations can be found at a number of sites on the Internet.

It must be stated that while case law is often helpful in appellate and complex actions, it is more helpful to the average user in understanding the decision making logic used by the judiciary in the performance of their jobs. To be an effective Pro Se litigant you MUST spend some time in an available law library learning how to look up and find the cited cases.

The Law is a dynamic process. We are also adding so much new information that occasionally there is duplicity or lack of clarity. Please check back periodically as we are continually adding, updating, and revising the information contained herein. Our goal is to make this web site the most comprehensive family law resource on the Internet.

Webmasters Note:Before you jump into the cases presented herein, it might be helpful to understand what they mean and how they can be useful to you. We recommend that you take a long look at the following information.

Basic Legal Citation

Parental rights may not be terminated without "clear and convincing evidence"

"Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into on going family affairs."

         SANTOSKY V. KRAMER, 102 S.Ct. 1388, 455 U.S. 745 (1982)

CHILD SUPPORT- Obligor's second family- Change of circumstances

Webmasters Note: If you are paying for two families you might use this. Often times precedents win cases.  There have been numerous developments in case law concerning this issue, and you are encouraged to thoroughly investigate the newest decisions in your state concerning child support and ability to pay. CLICK HERE FOR HOW ANCPR CAN ASSIST YOU IN THIS ENDEAVOR.

A family court hearing examiner should not have dismissed a non-custodial fathers's petition for downward modification of his child support obligation where the request was based on the fact that his current wife recently bore him twin sons, a new York trial court has ruled. the twins were born six months after entry of the final support order. The court said that their birth must be construed as a significant change of circumstances supporting modification. The court noted that this result accords with current legislative intention as contained in the recently enacted state Child Support Standard Act. This new consideration of subsequently-acquired children following divorce and re-marriage reflects the change in social patterns as a result of increased divorces, the court commented. Legislative adherence to the time honored doctrine that an obligor cannot avoid supporting offspring of a previous marriage by voluntarily undertaking the financial burden of an additional family has given way to new factors in determining child support, it observed. The court further stated that the act's legislative history takes into account the second family dilemma. It also noted that the state bar association has made clear that "reality dictates" that the prior doctrine give way to accommodating an obligor's incurred responsibilities-- " including the after-spawned children who have needs of their own.

         IN RE: MICHAEL M. V. JUDITH M.; NY SupCt Bronx Cty, NYLJ 11/2/90

The Court stressed, "the parent-child relationship is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection." A parent's interest in the companionship, care, custody and management of his or her children rises to a constitutionally secured right, given the centrality of family life as the focus for personal meaning and responsibility.

A child has an equal right to be raised by the father, and must be awarded to the father if he is the better parent, or mother is not interested.

         STANLEY V. ILLINOIS, 405 US 645, 651; 92 S Ct 1208, (1972).

If custodial mother has boyfriend living with her, state can change custody to father.

         JARRETT V. JARRETT, 101 S.Ct. 329

Custody can be awarded to father of girls of "tender years" if mother commits perjury, and is otherwise immoral.

         BEABER V. BEABER, 322 NE 2d 910.

Arguments that Joint Custody constitutes a "fundamental right"

         BECK V. BECK, 86 N.J. 480, see also 23 Ariz. Law Review 785.

Mother cannot take child out of state if that prevents "meaningful" relationship between father and child.

         WEISS V. WEISS, 436 NYS 2d 862, 52 NY 2d 170 (1981)

See also:

         DAGHIR V. DAGHIR, 82 AD 2d 191 (NY 1981)

         MUNFORD V. SHAW, 84 A.D. 2d 810, 444 NYS 2d 137 (1981)

         SIPOS V. SIPOS, 73 AD 2d 1055, 425 NYS 2d 414 (1980)

         PRIEBE V. PRIEBE, 81 AD2d 746, 438 NYS 2d 413 (1981)

         STRAHL V. STRAHL, 66 AD 2d 571, 414 NYS 2d 184 (1979)

         O'SHEA V. BRENNAN, 88 Misc.2d 233, 387 NYS 2d 212 (1976)

         WARD V. WARD, 150 CA 2d 438, 309 P.2d 965 (Calif. 1957)

         MARRIAGE OF SMITH, 290 Or.567, 624 P.2d 114 (Oregon 1981)

         MEIER AND MEIER, 286 Or. 437, 595 P.2d 474 (1979), 47 Or. App. 110, 613 P.2d 763 (Oregon 1980)

         All of these cases deal with preventing the custodial mother from taking the child out of the jurisdiction.

Ex Parte conferences, hearings or Orders denying parental rights or personal liberties are unconstitutional, cannot be enforced, can be set aside in federal court, and can be the basis of suits for money damages.

         RANKIN V. HOWARD, 633 F.2d 844 (1980);

         GEISINGER V. VOSE, 352 F.Supp. 104 (1972).

Laws and court procedures that are "fair on their faces" but administered "with an evil eye or a heavy hand" was discriminatory and violates the Equal Protection Clause of the Fourteenth Amendment.

         YICK WO V. HOPKINS, 118 S.Ct. 356 (1886)

Federal Courts can rule on federal claims (constitutional questions) involved in state divorce cases and award money damages for federal torts or in diversity of citizenship cases involving intentional infliction of emotional distress by denial of parental rights, "visitation", as long as the Federal Court is not asked to modify custodial status.

         LLOYD V. LOEFFLER, 518 F.Supp 720 (custodial father won $95,000 against parental kidnapping wife)

         FENSLAGE V. DAWKINS, 629 F.2d 1107 ($130,000 damages for parental kidnapping)

         KAJTAZI V. KAJTAZI, 488 F.Supp 15 (1976)

         SPINDEL V. SPINDEL, 283 F.Supp. 797 (1969)

         HOWARD V. KUNEN, USDC Mass CA No. 73-3813-G, 12/3/73 (unreported)

         SCHWAB V. HUTSON, USDC, S.Dist. MI, 11/70 (unreported)

         LORBEER V. THOMPSON, USDC Colorado (1981)

Right to jury trial in Contempt Cases.

         BLOOM V. ILLINOIS, 88 S.Ct. 1477

         DUNCAN V. LOUISIANA, 88 S.Ct. 1444

Contempt of Court is quasi-criminal, merits all constitutional protections:

         EX PARTE DAVIS, 344 SW 2d 925 (1976)

Excessive fine on Contempt

         COOPER V. C. 375 NE 2d 925 (IL 1978)

Payment of support tied to visitation:

         BARELA V. BARELA, 579 P.2d 1253 (1978 NM)

         CARPENTER V. CARPENTER, 220 Va.299 (1979)

         COOPER V. COOPER, 375 NE 2d 925 (Ill. 1978)

         FEUER V. FEUER, 50 A.2d 772 (NY 1975)

         NEWTON V. NEWTON, 202 Va. 515 (1961)

         PETERSON V. PETERSON, 530 P.2d 821 (Utah 1974)

         SORBELLO V. COOK, 403 NY Supp. 2d 434 (1978)

Child Support:

         ANDERSON V. ANDERSON, 503 SW 2d 124 (1973)

         ONDRUSEK V. ONDRUSEK, 561 SW 2d 236, 237 (1978; support paid by mother to custodial father)

         SMITH V. SMITH, 626 P.2d 342 (1981)

         SILVIA V. SILVIA, 400 NE 2d 1330 (1980 Mass,)

Although court may acquire subject matter jurisdiction over children to modify custody through UCCJA, it must show independent personal jurisdiction (significant contacts) over out-of-state father before it can order him to pay child support.

         KULKO V. SUPERIOR COURT, 436 US 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978); noted in 1979 Detroit Coll. L.Rev. 159, 65 Va. L.Rev. 175 (1979) ; 1978 Wash. U.L.Q. 797.

         Kulko is based upon INTERNATIONAL SHOE V. WASHINGTON, 326 US 310, 66 S.Ct. 154, 90 L.Ed 95 (1945) and HANSON V. DENCKLA, 357 US 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)

Attorney's Fees:

Attorney's fees only if court-appointed in contempt for non-payment of child support.

         SAUMS V. SAUMS, 610 SW 2d 244.

         EX PARTE MCMANUS, 589 SW 2d 790 (1981)

Custody can be changed if visitation is denied.

Wife can be held in contempt if visitation is denied.  This is another area where much legal discussion and reform has taken place recently.  You should definitely discover what your jurisdiction has to say on this topic.  CLICK HERE FOR HOW ANCPR CAN ASSIST YOUR RESEARCH.

         ENTWISTLE V. ENTWISTLE, 402 NYS 2d 213

Habeas Corpus:

Unlawfully retaining noncustodial parent cannot argue change of custody at Habeas Corpus hearing.

         NGUYEN DA YEN V. KISSINGER, 528 F.2d 1194 (1975);

         SMART V. CANTOR, 117 Ariz. 539, 574 P.2d 27 (1977);

         MCNEAL V. MAHONEY, 117 Ariz. 543, 574 P.2d 31 (1978)

Stay of execution by Court of Appeal protects its jurisdiction, not to protect Appellant's rights.

         PACE V. MCEWAN, 604 SW 2d 231 (1980) Also bearing on supersedeas bond.

Justice delayed is justice denied.

         MAGNA CHARTA, Art.40, June 15, 1215.

Attorney can be sued for malpractice under consumer protection laws.

         DEBAKEY V. STAGG, 605 SW 2d 631 (1980)

Money damages in federal civil rights suits need not exceed $10,000

         HAGUE V. CIO, 307 US 496.

But claim under $10,000 is cause of dismissal of diversity of citizenship action in federal court.

         DELOACH V. WOODLEY, 405 F2d 496 (1969).

Spouses can sue each other while still married for torts, intentional and unintentional.

         BLUNS V. CAUDLE, 560 SW 2d 925 (TX 1978)

Judge's dismissal for no cause is reversible.

         FOMAN V. DAVIS, 371 US 178 (1962)

Non-lawyers can assist or represent litigants in court.

         JOHNSON V. AVERY, 89 S.Ct. 747

Members of group who are competent nonlawyers can assist other members of group achieve the goals of the group in court without being charged with "unauthorized practice of law"

         BROTHERHOOD OF RAILWAY TRAINMEN V. VIRGINIA , 377 US 1;

         NAACP V. BUTTON, 371 US 415 (1962);

         SIERRA CLUB V. NORTON, 92 S.Ct. 1561;

         UNITED MINE WORKERS V. GIBBS, 383 US 715;

         FARETTA V. CALIFORNIA, 422 US 806.

Pro Se (Without a Lawyer, representing self) pleadings are to be considered without technicality; pro se litigants pleadings are not to be held to the same high standards of perfection as lawyers.

         HAINES V. KERNER, 92 S.Ct. 594;

         JENKINS V. MCKEITHEN, 395 US 411, 421 (1969);

         PICKING V. PENNA. RWY. CO. 151 F.2d 240;

         PUCKETT V. COX, 456 F.2d 233.

Federal judges can set aside or overturn state courts to preserve constitutional rights.

         MITCHUM V. FOSTER, 407 US 225 (1972)

         Title 28 US Code sec. 2284.

Right to electronically record one's own conversations without "beep note" when life, liberty or property is threatened, or to preserve sanctity of home.

         BEABER V. BEABER, 322 NE2d 910;

         18 US Code Sec. 2511 (d)(20)

A conspirator is responsible for the acts of other conspirators who have left the conspiracy before he joined it, or joined after he left it; statutes of limitations tolled for previous acts when each new act is done.

         US v. GUEST, 86 S.Ct. 1170;

         US V.COMPAGNA, 146 F.2d 524.

State statute of limitations is tolled (does not run) in SOME STATES while same action is pending in federal court; action can be brought in State Court after federal court dismisses for lack of subject matter jurisdiction.

         ADDISON V. STATE, 21 Cal. 3d 313 (1978);

         NICHOLS V. CANOGA IND., 83 Cal. App 3d 956 (1978) (Equitable tolling).

Either parent can sue for interference with parental rights.

         STRODE V. GLEASON, 510 P.2d 250 (1973);

Pro se:

         HANDBOOK OF THE LAW OF TORTS (West Publ. 1955) page 682;

         CARRIERI V. BUSH, 419 P.2d 132 (1966)

         SWEARINGEN V. VIK, 322 P.2d 876 (1958)

         LANKFORD V. TOMBARI, 213 P.2d 627, 19 ARL 2d 462 (1950);

         7 F.L.R. 2071 RESTATEMENT OF TORTS section 700A

         MARSHALL V. WILSON, 616 SW 2d 934

Children must be returned to home state before child support payments are continued.

         FEUER V. FEUER, 376 NYS 2d 546 (1975)

Custody can be changed if wife is "disrespectful" of "visitation" order.

         MURASKIN V. MURASKIN 283 NW 2d 140 (N. Dakota 1979)

Wife held in contempt for denial of visitation; new judge should not suspend contempt order.

         PETERSON V. PETERSON, 530 P.2d 821 (Utah 1974)

There is no violation of statute governing unauthorized publication or use of communications or of statute governing interception of wire or oral communication if one of the parties to the communication has given prior consent to such interception.

         STATE V. STANLEY, 597 P.2d 998, 123 Ariz. 95 (Ariz. App. 1979) (emphasis supplied)

Under the Fourth Amendment, there is no invasion of privacy in monitoring, recording, and introduction into evidence a telephone conversation where one party has given prior consent to the interception.

         STATE V. STANLEY, 597 P.2d 998, 123 Ariz. 95 (Ariz. App. 1979) (emphasis supplied)

There is no need to obtain an ex parte order for wiretapping or eavesdropping if the recording is made with the consent of one of the parties to the conversation or telephone communication to be recorded.

         STATE V. JOHNSON, 592 P.2d 379, 121 Ariz. 545 (Ariz. App. 1979) (emphasis supplied)

Consent of one party to conversation is sufficient to allow taping of conversation.

         STATE V. HOLMES, 476 P.2d 878, 13 Ariz. App. 357, application den. 91.S.Ct 1669, 402 U.S. 971, 29 L.Ed. 2d 135; cert. den. 91 S.Ct. 2255, 403 U.S. 936, 29 L.Ed.2d 717. (emphasis supplied)

Additional Cites re: WIRETAPPING/taping/telephone, etc.

Implied risk of communicating with any other person via phone that said person will divulge statements; hence OK to record conversation; no expectation of privacy.

         US v. PHILLIPS, C.A. Mo. 1976, 540 F.2d 319, cert.den. 97 S.Ct 530, 429 U.S. 1000, 50 L.Ed. 2d 611;

         Relevant Statutes (wiretapping) 18 USC 2511, 2520 (tort remedy available)

Question is whether person being recorded had reasonable expectation of privacy at time of recording. (Calif has its own wiretapping statutes, perhaps stronger re: privacy than U.S.)

         PEOPLE V. NEWTON, 1974, 116 Cal. Rptr 690; 42 C.A.3d 292, cert.den. 95 S.Ct.1147, 420 11 U.S. 937, 43 L.Ed.2d 414.

         U.S. V. HODGE, C.A. MI 1976, 539 F.2d 898, cert.den. 97 S.Ct. 1100, 429 U.S 1091, 51 L.Ed. 2d 536

         U.S. V. PERKINS, (D.C. OH 1974) 383 F.Supp. 922.

The alleged inadequacies of a parent must pose a serious risk to the child. The state cannot interfere with the parent/child relationship merely because its social workers believe the challenged parent might become a better parent. To allow such interference would make for systematic abuse of state power, victimizing the poor, the uneducated and cultural minorities.

         IN RE CARMEMATA, 579 P.2d 514, 146 Cal.Rptr. 623(1978);

         IN RE VISKE, 413 P.2d 876 (Mont.1966).

Alimony and wive's lawyers fees are civil debts, not enforceable by contempt procedures, since the Constitution did away with debtor's prison.

         DAVIS V. BROUGHTON, 382 SW 2d 219.

Fathers' Rights Case Law Title 42 USC 1983 is for (federal) civil rights violations. "Judges may be punished criminally for willful deprivation of rights on the strength of Title 18 U.S.A. 241 and 242."

"Judges may be punished criminally for willful deprivation of rights on the strength of Title 18 U.S.A. 241 and 242."

[The fact that There are federal rules\laws regarding suing including judges for violations of constitutional rights is proof enough that it occurs.] [Often instead of coming right out with it phrases like "an error of law" are used, not that the law is in error, but that the judge's ruling\ order or decision is "in error of the law". This means the judge's ruling is contrary to or in opposition to the law. Note the law may be "case law".]

         IMBLER V. PACHTMAN, 424 U.S. 409; 96 S.Ct. 984 (1976)

Right of parents to the care, custody and to nurture their children is of such character that it cannot be denied without violating those fundamental principals of liberty and justice which lie at the base of all our civil and political institutions, AND SUCH RIGHT IS A FUNDAMENTAL RIGHT PROTECTED BY THIS AMENDMENT AND AMENDMENTS 5, 9, and 14.

         DOE V. IRWIN, 441 f. SUPP. 1247, U.S. DISTRICT COURT OF MICHIGAN (1977)

" courts (must) indulge every reasonable presumption against waiver of fundamental constitutional rights, and... .not presume acquiescence in the loss of fundamental rights"

         DIMICK V. SCHIEDT, 293 U.S. 474 (1935); 304 US at 464

"Disobedience or evasion of a Constitutional mandate may not be tolerated, even though such disobedience may not be tolerated, even though such disobedience may. . . . promote in some respects the best interests of the public."

         WATSON V. CITY OF MEMPHIS, 83 S.Ct. 1314, 375 U.S. 526, 10 L.Ed. 2d.(1963)

The pleading of one who pleads pro se for the protection of civil rights should be liberally construed.

         BLOOD V. MARGIS, 322 F.2d 1086 (1971)

Parents have fundamental constitutionally protected interest in continuity of legal bond with their children.

         MATTER OF DELANEY, 617 P.2d 886, Oklahoma (1980)

The United States Supreme Court noted that a parent's right to "the companionship, care, custody and management of his or her children" is an interest "far more precious" than any property right.

         MAV V. ANDERSON, 345 U.S. 528, 533; 73 S.Ct. 840, 843 (1952)

"No bond is more precious and none should be more zealously protected by the law as the bond between parent and child."

         CARSEN V. ELROD, 411 F.Supp. 645, 649 (U.S. District Court Eastern Dist. Virginia 1976)

"A parent's right to the preservation of his relationship with his child derives from the fact that the parent's achievement of a rich and rewarding life is likely to depend significantly on his ability to participate in the rearing of his children. A child's corresponding right to protection from interference in the relationship deprives form the psychic importance to him of being raised by a loving, responsible, reliable adult." (Emphasis added)

         FRANZ V. UNITED STATES, 707 F.2d 582, 595-599 (U.S. Ct. App. D.C. Circuit 1983)

A parent's right to the custody of his or her children is an element of "liberty" guaranteed by the Fifth Amendment and Fourteenth Amendment to the Constitution of the United States.

         MATTER OF GENTRY, 369 N.W.2d. 889, Mich. Appellate Div. (1983)

Legislative classifications which distributes benefits and burdens on the basis of gender carry the inherent risk of reinforcing stereotypes about the proper place of women and their need for special protection; thus, even statutes purportedly designed to compensate for and ameliorate the effects of past discrimination against women must be carefully tailored. The state cannot be permitted to classify on the basis of sex.

         ORR V. ORR, 99 S.Ct. 1102, 440 U.S. 268 (1979)

The United States Supreme Court held that the "old notion" that "generally it is the man's primary responsibility to provide a home and its essentials, " can no longer justify a statute that discriminates on the basis of gender. "No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas."

         STANTON V. STANTON, 421 U.S. 7. 10; 95 S.Ct. 1373, 1376 (1975)

Classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.

         CRAIG V. BOREN, 97 S.Ct. 451;429 U.S. 190 (1976)

Classifications based upon sex, like classifications based upon race, alienage or national origin are inherently suspect and must be subjected to strict judicial scrutiny. . . .Any statutory scheme which draws a sharp line between the sexes, solely for the purpose of achieving administrative convenience, necessarily commands dissimilar treatment for men and women who are similarly situated and therefore involves the very kind of arbitrary legislative choice forbidden by the Constitution.

         FRONTIERO V. RICHARDSON, 93 S.Ct. 1746; 411 U.S. 677 (1973)

A classification must reasonable, not arbitrary, and must rest upon some ground of differences having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.

         JOHNSON V. ROBINSON, 94 S.Ct. 1160, 415 U.S. 361 (1974)

While a state has broad power when it comes to making classifications, it may not draw a line which constitutes an invidious discrimination against a particular class.

         LEVY V. LOUISIANA, 88 S.Ct. 1509, 391 U.S. 68 (1968)

"The claim and exercise of a Constitutional right cannot be converted into a crime."

         MILLER V. UNITED STATES, 230 F. 486 at 489

"We find it intolerable that one Constitutional right should have to be surrendered in order to assert another."

         SIMMONS V. UNITED STATES, 390 U.S. 389 (1968)

Government may not prohibit or control the conduct of a person for reasons that infringe upon constitutionally guaranteed freedoms.

         SMITH V. UNITED STATE, 502, F.2d.512 (1974)

An individual may not be punished for exercising a protected statutory constitutional right.

         U.S. v. GOODWIN, 102 S.Ct. 2485, 457 U.S. 368, 73 L.Ed2d 74, on remand 687 F.2d 44 (1982)

Within limits of practicability, a state must afford to all individuals a meaningful opportunity to be heard. . .Whenever one is assailed in his person or his property, there he may defend. . .The right to meaningful opportunity to be heard within limits of practicality must be protected against denial by particular laws that operate to jeopardize it for particular individuals.

         BODDIE V. CONNECTICUT, 92, S.Ct. 780, 401 U.S. 371. 28 L.Ed.2d 113 conformed t 329 F. Supp. 844 (1971)

Quite apart from the guarantee of equal protection, if a law impinges on a fundamental right explicitly or implicitly secured by the Constitution it is presumptively unconstitutional.

If a law has no other purpose that to chill assertion of constitutional rights by penalizing those who choose to exercise them, it is patently unconstitutional.

         HARRIS V. McRAE, 100 S.Ct. 2671, 448 U.S. 297, 65 L.Ed.2d 784,rehearing denied 101 S.Ct. 39, 448 U.S. 917, 65 L.Ed.2d 1180 (1980)

In pursuing substantial state interest, state cannot choose means which unnecessarily burden or restrict constitutionally protected activity.

         DUNN V. BLUMSTEIN, 92 S.Ct. 995, 405 U.S. 330 (1972)

Only where state action impinges on exercise of fundamental constitutional right or liberties must it be found to have chosen the least restrictive alternative.

         SAN ANTONIO INDEPENDENT SCHOOL DIST. V. RODRIGUEZ, 93 S.Ct. 1278, 411 U.S. 1 (1973)

"Because the State is supposed to proceed in respect of the child as parens patriae and not as adversary,. . . ."

         KENT V. UNITED STATES, 86 S.Ct.1045 at 1054 (1966)

Where certain fundamental rights are involved, regulation limiting these rights may be justified only by a compelling state interest and the legislative enactment must be narrowly drawn to express only legitimate state interests at stake.

         ROE V. WADE, 93 S.Ct. 705, 410 U.S. 113 (1973)

A state cannot foreclose the exercise of constitutional rights by mere labels.

         BIGELOW V. VIRGINIA, 95 S.Ct. 2222, 421 U.S. 809 (1975)

There is a right to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child

         COHEN V. CHESTERFIELD COUNTY SCHOOL BOARD, 94 S.Ct. 791, 414 U.S. 632 (1974)

Neither Fourteenth amendment nor Bill of Rights is for adults alone.

         APPLICATION OF GAULT, 87 S.Ct. 1428, 387 U.S. 1 (1967)

Vague laws offend several important values; first, vague laws may trap the innocent by not providing fair warning; second, vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with attendant dangers of arbitrary and discriminatory application; and third, where a vague statute abuts on sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms.

         GRAYNED V. CITY OF ROCKFORD, 92 S.Ct. 2294, 408 U.S. 104 (1972)

A parent may bring a suit against a municipality which failed to provide protection against an ex-spouse, under 42 U.S.C. Section 1983. The parent may recover damages for her son's death and her own injuries, where the police force assured her of protection from a violent ex-spouse.

         RAUCCI V. TOWN OF ROTTERDAM, No. 89-7693, U.S. Dist. Ct. --N.Y., April 27, 1990

Police officer loses qualified immunity to claim that facially neutral policy has been executed in a discriminatory manner in a domestic violence situation if that police officer knows that the policy has a discriminatory impact.

         HANSEN V. CITY OF ) LEGAL DEPT., 864 F.2d 1026, 3rd Cir. (1988)

Jury trials are a must when holding a trial for civil contempt where "clear and convincing" evidence must be produced. United States Constitution, Amendment VII states: "In suits at common law, where the value in controversy shall exceed twenty dollar, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law." "The jury. . . . acts not only as a safeguard against judicial excesses, but also as a barrier to legislative and executive oppression. The Supreme Court . . .recognizes that the jury . . . is designed to protect Defendants against oppressive governmental practices."

         UNITED STATES EX REL TOTH V. QUARLES, 350 U.S. 11, 16 (1955)

The Jury has "an unreviewable and power. . . to acquit in disregard of the instructions on the law given by the trial judge."

         U.S. V. DOUGHERTY, 473 F.2d 1113, 1139 (1972)

"The common law right of the jury to determine the law as well as the facts remains unimpaired."

         STATE V. CROTEAU, 23 Vt. 14, 54 AM DEC 90 (1849)

"Trial by jury is available . . . as indicated in Seventh Amendment."

         PERNELL V. SPUTHHALL REALTY, 416 U.S. 363, 40 L.Ed 2d 198, 94 S. Ct. (1973)

"Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution."

         UNITED STATES V. BROWN, 381 U.S. 303, 66 S.Ct. 1073 (1946)

Alexander Hamilton wrote: "Nothing is more common than for a free people, in times of heat and violence, to gratify momentary passions, by letting into the government principles and precedents which afterwards prove fatal to themselves. Of this kind is the doctrine of disqualification, disfranchisement, and banishment by acts of the legislature. The dangerous consequences of this power are manifest. If the legislature can disfranchise any number of citizens at pleasure by general descriptions.

"The Constitution outlaws this entire category of punitive measures. The amount of punishment is material to the classification of a challenged statute. But punishment is prerequisite. . ."

"The deprivation of any rights, civil or political, the circumstances attending and the causes of the deprivation determining the fact. "

         U.S. V. LOVETT, 66 S.Ct. 1073, 1083 (1946)

The singling out of an individual for legislatively prescribed punishment constitutes a "bill of attainder" whether individual is called by name or described in terms of conduct which, because of its past conduct, operates only as a designation of particular persons.

         COMMUNIST PARTY OF U.S. V. SUBVERSIVE ACTIVITIES CONTROL BOARD, 81 S.Ct. 1357, 367 U.S. 1, 6 L.Ed.2d 625, rehearing denied 82 S. Ct. 20, 368 U.S. 871, 7 L.Ed.2d 72

Every person who, under color of any statute ordinance, regulation, custom, or by usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. EVERY PERSON SHALL BE LIABLE IN AN ACTION AT LAW SUIT IN EQUITY N0 EXCLUSION FOR JUDGES BY ANY ACT OF CONGRESS UNITED STATES CODE, TITLE 42, SECTION 1985 (3) If two or more persons . . . conspire. . for the purpose of depriving. any person. . . of the equal protection of the laws . . . the party so injured or deprived may have an action for the recovery of damages . . . RECOVERY OF DAMAGES AGAINST ANY ONE OR MORE OF THE CONSPIRATORS N0 EXCLUSION FOR JUDGES BY ANY ACT OF CONGRESS UNITED STATES CODE, TITLE 42, SECTION 1986 Every person who, having knowledge that any of the wrongs . . . are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do . . . shall be liable . . . EVERY PERSON SHALL BE LIABLE FOR ALL DAMAGES NO EXCLUSION FOR JUDGES BY ANY ACT OF CONGRESS UNITED STATES CODE, TITLE 42, SECTION 1988

         UNITED STATES CODE, TITLE 42, SECTION 1983

"When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetrated and no one is bound to obey it."

         STATE V. SUTTON, 63 Minn. 147 65 NW 262 30 ALR 660. Also see (Watson v. Memphis, 375 US 526; 10 L Ed 529; 83 S.Ct. 1314)

It is the duty of the courts to be watchful for CONSTITUTIONAL RIGHTS of the citizen, against any stealthy encroachments thereon."

         BOYD V. U.S., 116 US 616, 635, (1885)

"The judicial branch has only one duty --- to lay the article of the Constitution which is involved beside the statue which is challenged and to decide whether the latter squares with the former. . .the only power it (the Court) has. . .is the power of judgement."

         U.S. V. BUTLER, 297 US (1936)

"Whoever, under color of law, statute, or ordinance, regulation, or custom, willfully subjects any inhabitants of any state to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or Law of the United States. . . shall be fined no more than $1,000 or imprisoned one year or both."

         Title 18 U.S.C.A. 242 (U.S. Criminal Code)

Title 18 U.S.C.A. 241, 242 are the criminal equivalent of Title 42 U.S.C.A. 1983, 1985 et seq. "Judges have no immunity from prosecution for their judicial acts."

         BRADLEY V. FISHER, U.S. 13 Wall. 335 (1871)

"Federal Courts should avoid a ruling that any act of Congress is void on it face if the act can be either construed as constitutional or applied as constitutional."

         EMPIRE STEEL MFG. CO. V. MARSHALL, 437 F.Supp. 873 (U.S. District Ct. of Montana -1977)

"When a judge acts intentionally and knowingly to deprive a person of his constitutional rights, he exercises no discretion or individual judgement; he acts no longer as a judge, but as a "minister" of his own prejudice."

         PIERSON V. RAY, 386 U.S. 547 at 567 (1967)

"We should, of course, not protect a member of the judiciary "who is in fact guilty of using his power to vent his spleen upon others, or for any other personal motive not connected with the public good."

         GREGOIRE V. BIDDLE, 177 F.2d 579, 581.

"Government immunity violates the common law maxim that everyone shall have remedy for an injury done to his person or property."

         FIREMAN'S INS/ CO. OF NEWARK, N.J. V. WASHBURN COUNTY, 2 Wis.2d 214, 85 N.W.2d 840 (1957)

Immunity fosters neglect and breeds irresponsibility, while liability promotes care and caution, which caution and care is owed by the government to its people."

         RABON V. ROWEN MEMORIAL HOSP., INC, 269 NSI. 13, 152 S.E.2d 485, 493 (`1967)

"Actions by state officers and employees, even if unauthorized or in excess of authority can be actions under 'color of law'. "

         STRINGER V. DILGER, 313 F.2d 536 (U.S. Ct. App 10th Circ. - 1963

"A judge is not immune from criminal sanctions under the civil rights act."

"State officials acting in their official capacities, even if in abuse of their lawful authority , generally are held to act "under color" of law. This is because such officials are " clothed with the authority" of state law, which gives them power to perpetrate the very wrongs that Congress intended Section 1983 to prevent. "

         EX PARTE VIRGINIA, 100 U.S. 339, 346-347 (1879)

"The language and purpose of the civil rights acts, are inconsistent with the application of common law notions of official immunity. . . "

         JACOBSEN V. HENNE, 335 F.2d 129, 133 (U.S. Ct. App. 2nd Circ. - 1966) Also see" ANDERSON V. NOSSER, 428 F.2d 183 (U.S. Ct. App. 5th Circ. - 1971)

"Governmental immunity is not a defense under (42 USC 1983) making liable every person who under color of state law deprives another person of his civil rights."

         WESTBERRY V. FISHER, 309 F.Supp. 95 (District Ct.- of Maine - 1970 "

Judicial immunity is no defense to a judge acting in the clear absence of jurisdiction."

         BRADLEY V. FISHER, U.S. 13 Wall. 335 (1871)

As long as a defendant who abridges a plaintiff's constitutional rights acts pursuant to a statute of local law which empowers him to commit the wrongful act, an action under the Federal Civil Rights statute is established. 42 U.S.C.A. 1981 et seq.;

         LAVERNE V. CORNING, 316 F.Supp. 629

"The Supreme Court initially discussed judicial immunity in Randall v. Brigham, 74 U.S. (7 Wall.) 523, 19 L.Ed. 285 (1869). In Randall, the Court wrote that judges of superior or general jurisdiction courts were not liable to civil actions for their judicial acts, even when such acts, where the acts, in excess of jurisdiction, are done maliciously or corruptly." [Editor's Note: In more recent cases: Stump v. Sparkman, 435 U.S. 349 (1978) and Dennis v. Sparks, 449 U.S. 24 it was found that judges were really not acting in a malicious and corrupt manner and the proofs also showed that. Congress by its words and meaning enacted the Civil Rights Act of 1871 and that meaning included judges to be held responsible to an injured plaintiff for the deprivation of Constitutional Rights. Any judge made case finding to the contrary is hereby challenged as unconstitutional and unlawful. No Court has ever challenged the Constitutionality of the Civil Rights Act of 1871, and therefore said Congressionally enacted legislation stands as law. The only way to change an act of Congress is by an act of Congress. No judge can change it and any such findings and changes are not to be upheld in Federal Courts as lawful. No changes in the wording have ever been made to Title 42 U.S.C.A. 1981, 1983, 1985, 1986 and 1988 and therefore these Congressionally enacted laws are enforceable in the Federal Courts. The only change made to Title 42 U.S.C.A. 1983 took place in 1979. At this time the words "or the District of Columbia" were inserted following "Territory". If any judges or persons representing judges had wanted to make a change this would have been an opportune time to do so. No action was ever taken to change the wording of the law and it remains as such today.]

         RANDALL V. BRIGHAM, 74 U.S. (7 Wall.) 523, 19 L.Ed. 285 (1869).

"The resolution of immunity questions inherently requires a balance between the evils inevitable in any available alternative. In situations of abuse of office, an action for damages may offer the only realistic avenue for vindication of constitutional guarantees."

         BUTZ V. ECONOMOU, 438 U.S. 506, 98 S.Ct. 2910 (1978)

Editor's Note: Federal lawsuits can be brought under both Title 42 U.S.C.A. 1983, 1985, 1986, 1988 and/or brought directly under the Constitution against federal officials. Butz at 504

"Referring both to the objective and subjective elements, we have held that qualified immunity (Ed. Note: or "good faith") would be defeated if an official "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury. . ."

         HARLOW V. FITZGERALD, 102 S.Ct. 2727 at 2737, 457 U.S. 800 (1982)

"I agree with the substantive standard announced by the Court today, imposing liability when a public-official defendant "knew or should have known" of the constitutionally violative effect of his actions. This standard would not allow the official who actually knows that he was violating the law to escape liability for his actions, even if he could not "reasonably have been expected" to know what he actually did know. Thus the clever and unusually well-informed violator of constitutional rights will not evade just punishment for his crimes. I, also agree that this standard applies "across the board," to all "government officials performing discretionary functions.," Harlow at 2739, Justice Brennan, Justice Marshall, and Justice Blackmum concurring. In Pierson v. Ray, 386 U.S. 547, Mr. Justice Douglas, dissenting:

"I do not think that all judges, under all circumstances, no matter how outrageous their conduct are immune from suit under 17 Stat. 13, 42 U.S.C. Section 1983. The Court's ruling is not justified by the admitted need for a vigorous and independent judiciary, is not commanded by the common -law doctrine of judicial immunity, and does not follow inexorably from our prior decisions." at 558-559

"The position that Congress did not intend to change the common-law rule of judicial immunity ignores the fact that every member of Congress who spoke to the issue assumed that the words of the statute meant what they said and that judges would be liable." at 561

"Yet despite the repeated fears of its opponents, and the explicit recognition that the section would subject judges to suit, the section remained as it was proposed; it applied to "any person". There was no exception for members of the judiciary. In light of the sharply contested nature of the issue of judicial immunity it would be reasonable to assume that the judiciary would have been expressly exempted from the wide sweep of the section, if Congress had intended such a result." at 563

"We should, of course, not protect a member of the judiciary "who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good." at 564 ". . .the judge who knowingly turns a trial into a "Kangaroo" court? Or one who intentionally flouts the Constitution in order to obtain conviction? Congress, I think, concluded that the evils of allowing intentional, knowing deprivations of civil rights to go unredressed far out weighed the speculative inhibiting effects which might attend an inquiry into a judicial deprivation of civil rights." at 567

"Judges are not immune for their nonjudicial activities, i.e., activities which are ministerial or administrative in nature."

         SANTIAGO V. CITY OF PHILADELPHIA, 435 F.Supp. 136

"It is not a judicial function for judge to commit intentional tort, even though tort occurs in courthouse."

         YATES V. VILLAGE OF HOFFMAN ESTATES, ILLINOIS, 209 F.Supp. 757

"There was no judicial immunity to civil actions for equitable relief under Civil Rights Act of 1871. 42 U.S.C.A. 1983 Shore v. Howard. 414 F.Supp. 379 "There is no judicial immunity from criminal liability". Id. "Repeated pattern of failing to advise litigants of their constitutional and statutory rights is serious judicial misconduct."

         MATTER OF PEEVES, 480 N.Y.S. 2d 463.

"When a judge knows that he lacks jurisdiction or acts in face of clearly valid statutes or case law expressly depriving him of jurisdiction, judicial immunity is lost."

         RANKIN V. HOWARD, 633 F.2d 844.

[Note: If the Right to Counsel under the Sixth Amendment is not complied with, the Court no longer has jurisdiction to proceed. Remember this in child support contempt proceedings and false domestic violence proceedings.]

"Judges are not absolutely immune from liability to damages under Civil Rights Act. 42 U.S.C.A. Section 1983 & 1985

         PETERSON V. STANCZAK, 48 F.R.D. 426

"Under the common law of England, where individual rights were preserved by a fundamental document such as the Magna Carta, violations of those rights generally could be remedied by a traditional action for damages; violation of constitutional right was viewed as a trespass, giving rise to a trespass action.

         WIDGEON V. EASTERN SHORE HOSP. CENTER, 479 a.2d. 921

"There is no judicial immunity from criminal liability."

         SHORE V. HOWARD, 414 F.Supp. 379

"State judges, as well as federal, have the responsibility to respect and protect persons from violations of federal constitutional rights."

         GOSS V. STATE OF ILLINOIS, 312 F2d. 1279 (U.S.Ct.App. - Illinois - 1963)

"Conduct of trial judge must be measured by standard of fairness and impartiality."

         GREENER V. GREEN, 460 F.2d 1279 (U.S.Ct. App. - Pa. - 1972)

Judges must maintain a high standard of judicial performance with particular emphasis upon conducting litigation with scrupulous fairness and impartiality. 28 USCA 2411;

         PFIZER V. LORD, 456 F 2d 532; cert denied 92 S Ct 2411; US Ct App MN, (1972).

"A judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes or case law expressly depriving him of jurisdiction, judicial immunity is lost." Id.

[Note: It is well settled that non-custodial fathers as well as mothers have a constitutionally protected liberty interest in their parent/child relationship and case law as well as statutory law has time and again upheld that right. Judges have complete knowledge of the right of children to have access to both parents during separation and after divorce. For a judge to discriminate on the basis of sex to deny the parent/child relationship or severely limit it without just cause/clear and convincing evidence, causes that judge to lose jurisdiction and therefore judicial immunity because of his discriminatory "ministerial" personal viewpoints.]

"Law requires not only impartial tribunal, but that tribunal appears to be impartial." 28 U.S.C.A. 455.

         IN RE TIP-PAHANDS ENTERPRISES, INC., 27 B.R. 780 (U.S. Bankruptcy Ct.)

The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by this amendment (First) and Amendments 5, 9, and 14.

         DOE V. IRWIN, 441 F Supp 1247; U.S. D.C. of Michigan, (1985).

The several states has no greater power to restrain individual freedoms protected by the First Amendment than does the Congress of the United States.

         WALLACE V. JAFFREE, 105 S Ct 2479; 472 US 38, (1985).

Loss of First Amendment Freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Though First Amendment rights are not absolute, they may be curtailed only by interests of vital importance, the burden of proving which rests on their government.

         ELROD V. BURNS, 96 S Ct 2673; 427 US 347, (1976).

Parent's right to custody of child is a right encompassed within protection of this amendment which may not be interfered with under guise of protecting public interest by legislative action which is arbitrary or without reasonable relation to some purpose within competency of state to effect.

         REYNOLD V. BABY FOLD, INC., 369 NE 2d 858; 68 Ill 2d 419, appeal dismissed 98 S Ct 1598, 435 US 963, IL, (1977).

The United States Supreme Court noted that a parent's right to "the companionship, care, custody and management of his or her children" is an interest "far more precious" than any property right.

         MAY V. ANDERSON, 345 US 528, 533; 73 S Ct 840, 843, (1952).

A parent's right to care and companionship of his or her children are so fundamental, as to be guaranteed protection under the First, Ninth, and Fourteenth Amendments of the United States Constitution.

         IN RE: J.S. AND C., 324 A 2d 90; supra 129 NJ Super, at 489.

Parent's rights have been recognized as being "essential to the orderly pursuit of happiness by free man."

         MEYER V. NEBRASKA, 262 or 426 US 390 ; 43 S Ct 625, (1923).

The U.S. Supreme Court implied that "a (once) married father who is separated or divorced from a mother and is no longer living with his child" could not constitutionally be treated differently from a currently married father living with his child.

         QUILLOIN V. WALCOTT, 98 S Ct 549; 434 US 246, 255-56, (1978).

No bond is more precious and none should be more zealously protected by the law as the bond between parent and child."

         CARSON V. ELROD, 411 F Supp 645, 649; DC E.D. VA (1976).

Reality of private biases and possible injury they might inflict were impermissible considerations under the Equal Protection Clause of the 14th Amendment.

         PALMORE V. SIDOTI, 104 S Ct 1879; 466 US 429.

State Judges, as well as federal, have the responsibility to respect and protect persons from violations of federal constitutional rights.

         GROSS V. STATE OF ILLINOIS, 312 F 2d 257; (1963).

The right of a parent not to be deprived of parental rights without a showing of fitness, abandonment or substantial neglect is so fundamental and basic as to rank among the rights contained in this Amendment (Ninth) and Utah's Constitution, Article 1 1.

         IN RE U.P., 648 P 2d 1364; Utah, (1982).

The rights of parents to parent-child relationships are recognized and upheld.

         FANTONY V. FANTONY, 122 A 2d 593, (1956).

         BRENNAN V. BRENNAN, 454 A 2d 901, (1982).

"Municipal ordinances adopted under state authority constitute state action and are within prohibition of the Fourteenth Amendment."

         Lovell v Griffin (1938) 303 US 444, 82 L Ed 949, 8 S Ct 666.

"Prohibitions of Fourteenth Amendment apply to acts of administrative agencies of state."

         Dixon v State (1946) 224 Ind 327, 67 NE2d 138

"It is enough to invoke procedural safeguards of Fourteenth Amendment that significant property interest is at stake, whatever ultimate outcome of the hearing."

         Cary v Piphus (1978) 435 US 247, 55 L Ed 2d 252, 98 S Ct 1042

"Aliens, as well as citizens are entitled to protection of Fifth Amendment"

         United States v Pink (1942) 315 US 203, 86 L Ed 796, 62 S Ct 552.

On "antecedent conditions" and "conditions precedent":

"Where some antecedent conditions must exist prior to the exercise of power, or must be performed before certain powers can be exercised, a statute directing fulfillment of such conditions is "mandatory".

         Application of Megan, 5 N.W. 2d, 729, 733, 69 S.D. 1.

Also see:

         State ex rel. Jones v. Farrar, 66 N.E. 2d 531, 534, 146 Ohio St. 467.

         Crane v. Board of Sup'rs of L.A., 62 P 2d 189, 193, 17 Cal. App. 2d 360.

"But proceedings outside the authority of the court, or in violation or contravention of statutory prohibitions, are, whether the court have jurisdiction of the parties and subject-matter of the action or proceedings, or not, utterly void."

         Sache v. Wallace, 101 Minn. 169, 112 N.W. 386 (1907)

"Although a court may have jurisdiction over the parties and the subject matter, yet if it makes a decree which is not within the powers granted to it by the law of its organization, its decree is void."

         U.S. v. Walker, 109 US 258, 3 S Ct 277, 27 L Ed 927 (1883)

And, on statutes whose purpose is for the pubic well being (very applicable since divorce is a statutory proceeding)

"...statutory requisitions...when the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory but mandatory. They must be followed or the acts done will be invalid. The power of the officer is all such cases is limited by the manner and conditions prescribed for its exercise."

         French v. Edwards, 80 US 506, 511, 13 Wall. 506, 20 L Ed. 702 (1871).

"A statutory power, to be validly executed, must be executed according to the statutory directions."

         Marx v. Hanthorn, 148 US 172, 180, 37 L Ed. 410, 13 S Ct 508 (1892).

         State ex rel. Laurisch v. Pohl, 214 Minn. 221,225, 8 N.W. 2d 227 (Minn S Ct 1943.)

"To do business upon public streets is not a matter of right like the right of ordinary travel.... "The right of a citizen to travel upon the highway and transport his property thereon, in the ordinary course of life and business...is the usual and ordinary right of a citizen, a common right, a right common to all..." "

         Schultz v. City of Duluth, 203 N.W. 449 (Minn S Ct 1925), quoting from Ex parte Dickey, 76 W. Va. 576, 85 S.E. 781, L.R.A. 1915F, 840.

"...the rule that if a statute purporting to have been enacted to protect the public health, the public morals or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution."

         Jacobson v. Massachusetts, 197 US 11, 31, 25 S Ct 358, 49 L Ed 643 (1904),

         citing, Mugler v. Kansas, 123 US 623, 661, and Minnesota v. Barber, 136 US 313, 320, and Atkin v. Kansas, 191 US 207, 223.

Also, very good analysis of when the state effectively adopts procedures by which they shift the "burden of proof", to their advantage, with a LOTS of citations

         Mullaney v. Wilbur, 421 U.S ? (@ about 690) (1974).

One of the best cases I've come across as far as defining what it takes to state a cause of action under 42 U.S.C. section 1983.

"By the plain terms of section 1983, two - and only two - allegations are required in order to state a cause of action under that statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law."

Gomez v. Toledo, 446 U.S. 635 (1980)