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.
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case law for your particular situation.
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law, you should definitely consider
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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) |