SUPERIOR COURT OF THE DISTRICT OF COLUMBIA Domestic Violence Unit OPPOSITION TO RULE 11 MOTION

Transcription

1 SUPERIOR COURT OF THE DISTRICT OF COLUMBIA Domestic Violence Unit CAROLYN MISCHE-HOEGES Petitioner v. MATTHEW LEFANDE Case No: 2010 CPO Judge Jose M. Lopez Courtroom 114 Respondent OPPOSITION TO RULE 11 MOTION The Respondent hereby opposes the Petitioner s Motion for Rule 11 sanctions. As with every previous memorandum before this Court, the Petitioner s attorneys offer no substantive argument to rebut the Respondent s prior legal argument and offer no argument or evidence which supports their allegations contained within the present motion. The Petitioner s attorneys make two arguments, both of which solely amount to pat recitals of the Rule and neither of which are accompanied by any authority or evidence in support. First, the Petitioner s attorneys assert that the Respondent s Second Motion to Vacate a Consent Order [] was filed in contravention of the Rules and this Court s Order. Mot. at 2. Second, they claim that the motion is brought for the improper purpose of harassing the Petitioner and needlessly increasing her attorney s fees. Id. Rule 11 requires only that the signer of the offending paper have a belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law and that it is not interposed for any improper purpose Bus. Guides, Inc. v. Chromatic

2 Communs. Enters., 498 U.S. 533, 541 (1991) (quoting analogous FED. R. CIV. P. 11). Rule 11 is aimed at curbing abuses of the judicial system. Id. at 542 (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 397 (1990)). Rule 11 sanctions are not to be imposed simply because the allegations in the challenged pleading are found wanting. Goldschmidt v. Paley, Rothman, Goldstein, Rosenberg & Cooper, Chtd., 935 A.2d 362, 378 (D.C. 2007) (quoting Bredehoft v. Alexander, 686 A.2d 586, 594 (D.C. 1996) [internal quotation marks and citation omitted]). We give the Federal Rules of Civil Procedure their plain meaning. Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 123 (1989). As with a statute, our inquiry is complete if we find the text of the Rule to be clear and unambiguous. Bus. Guides at [parallel citations omitted]. Our task is to apply the text, not to improve upon it. Id. at 549 (quoting Pavelic & LeFlore, supra, at 126). The Petitioner s Motion meets neither Rule 11 standard. As demonstrated below, it is the Petitioner s Motion that lacks any evidentiary foundation or a legitimate basis in existing law. Her concurrent opposition to the Respondent s Rule 59(e) Motion amply demonstrates the Petitioner has no genuine interest in finding an expeditious resolution to this case. The Rule 59(e) Motion offered a simple enough proposition, allow this Court to express its position on the merits of the Respondent s Motion to Vacate the Void Consent Order so that a duplication of appeal proceedings could be avoided, consistent with this Court s Civil Rule 1. But the Petitioner instead is intent on avoiding any further scrutiny of her baseless allegations by this Court, particularly where the Court could potentially dispose of the matter summarily as the Respondent suggests. The Respondent s ongoing endeavor to vindicate his civil rights is not an improper purpose 2

3 under Rule 11. The Petitioner s vexatious efforts to deny Respondent appropriate judicial review of these issues certainly are. 1. The Petitioner s attorneys have failed to refute and for the most part, have failed to even address the legal arguments contained within the Respondent s Motion to Vacate the Void Consent Order. The Petitioner s attorneys assert that the Respondent s Motion to Vacate the Void Consent Order was not warranted by existing law or a non-frivolous argument for the extension, modification or reversal of existing law or the establishment of new law. Mot. at 5. Nowhere within the motion do they make any argument in support of this contention. Instead, they only refer to the Petitioner s Exhibit B in support, her own memorandum in opposition to the motion. Mot. at 4. This Opposition was premised upon a ridiculous factual assertion that the Respondent also repeatedly and voluntarily appeared before this court, Opp n at 4, and an incorrect and unsupported legal assertion that the Respondent could stipulate to the jurisdiction of this Court where none existed by law. Id. The Respondent has never appeared before this Court voluntarily in this case. In each and every instance, the Respondent was compelled to appear before this Court under threat of arrest. Indeed, the one time that the Respondent did not appear before this Court for a scheduled hearing, after the Respondent s attorney properly moved for a continuance due to a scheduling conflict, this Court issued a warrant for the Respondent s arrest. Even after the time limitations expired for continuing the Temporary Protection Order and associated hearings under D.C. Code (2) and the Respondent refused to consent to any further continuation thereof, this Court again 3

4 compelled the Respondent s appearance under threat of arrest, in unabashed violation of the law. August 30, 2010 Hr g Tr. at This Court compelled the Respondent to appear before it unlawfully and any order, other than an order recognizing this deficiency in jurisdiction and dismissing the case in its entirety, was, and is, void. This Court was without any authority to enter the Consent Order, regardless of the parties respective positions. The Respondent properly challenged the Court s authority in his Rule 60(b) Motion and within his pending appeal. Generally, an order issued by a court without jurisdiction over the subject matter ruled upon can be challenged at any time. Mayo v. Mayo, 508 A.2d 114, 115 (D.C. 1986) (citing Wade v. Union Storage & Transfer Co., 58 A.2d 493, 496 (D.C. 1948); Fishel v. Kite, 101 F.2d 685, 687 (D.C. Cir. 1938)) [footnote omitted]. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868). A fundamental defect in jurisdiction cannot be cured by consent of the parties. The Respondent could not consent to jurisdiction where none existed otherwise. In a civil action, matters properly subject to stipulation by the parties are myriad so long as the resulting agreement affects neither the court s jurisdiction -- that is, does not attempt to create jurisdiction where there would otherwise be none -- nor the court s due order of business or convenience. 1 Already by July 29, 2010, the Respondent had been subjected to limitations on his freedom of movement, freedom of speech and upon his ability to carry firearms for 37 days without a hearing on the merits, where the D.C. Code only permits a total of 28 days for a Temporary Protection Order to be in effect, including any extension. Thomas v. United States, 934 A.2d 389, 392 (D.C. 2007). This Court s extension for another 21 days, over the protests of Respondent s counsel, occurred more than a month after the July 29, 2010 hearing. 4

5 Goozh v. Capitol Souvenir Co., 462 A.2d 1140, 1142 (D.C. 1983) (quoting Kardibin v. Associated Hardware, 426 A.2d 649, 655 (Pa. Super. 1981) and citing Zvonik v. Zvonik, 435 A.2d 1236 (Pa. Super. 1981); Foote v. Maryland Casualty Co., 186 A.2d 255 (Pa. 1962)). The Petitioner s attorneys have never offered any rebuttal to the definitive and controlling authority of the D.C. Court of Appeals as cited here. The Petitioner s attorneys fail to even address the majority of the Respondent s argument, and for good reason, they cannot refute it. First is Respondent s assertion that absent a basis for finding an intrafamily offense, this Court was without any jurisdiction to compel the Respondent to appear before it. Nowhere within any paper ever filed by the Petitioner s attorneys has this issue ever been addressed. A Court s authority over the person or the subject matter of a case is a fundamental threshold inquiry. The Petitioner has never disputed this. The issue of the Court s lack of any probable cause that an offense was committed by the Respondent was first raised by the Respondent in a motion filed on July 12, Nearly all of the legal argument regarding the deficiency of the Petitioner s allegations now presented within the present Motion to Vacate the Void Consent Order was first presented to this Court within that July 12, 2010 Motion. The Petitioner s Response dated July 26, 2010 completely failed to address three key issues which the Respondent raised in defense. First, an alleged name calling in an exchange with the Petitioner, absent any threat whatsoever, was protected speech and categorically exempt from D.C. Code In support of this contention, the Respondent offered citations to no less than four United States Supreme Court cases and a multitude of lower court cases conforming to them. But it is difficult, indeed, to justify a prohibition on all uninvited approaches of persons seeking the services of the clinic, regardless of how peaceful the contact 5

6 may be, without burdening more speech than necessary to prevent intimidation and to ensure access to the clinic. Absent evidence that the protesters speech is independently proscribable (i.e., fighting words or threats), or is so infused with violence as to be indistinguishable from a threat of physical harm, see [Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, (1941)], this provision cannot stand. As a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment. [Boos v. Barry, 485 U.S. 312, 322 (1988)] (internal quotation marks omitted). Madsen v. Women s Health Ctr., 512 U.S. 753, 774 (1994). And the Federal Government can criminalize only those threats of violence that are directed against the President, see 18 U. S. C since the reasons why threats of violence are outside the First Amendment (protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur) have special force when applied to the person of the President. R. A. V. v. St. Paul, 505 U.S. 377, 388 (1992) [citation omitted]. If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Tex. v. Johnson, 491 U.S. 397, 414 (1989) [citations omitted]. The Nation undoubtedly has a valid, even an overwhelming, interest in protecting the safety of its Chief Executive and in allowing him to perform his duties without interference from threats of physical violence. Nevertheless, a statute such as this one, which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech. Watts v. United States, 394 U.S. 705, 707 (1969) [citation omitted]. The Respondent later cited to a D.C. Circuit opinion consistent with the Supreme Court s assertion that absent a threat, speech remains constitutionally protected. The jury was instructed that it could convict Popa if it found beyond a reasonable doubt that he had the intent to annoy, abuse, threaten or harass any person at the number called. Because the jury delivered a general verdict, we cannot know which intent the jury concluded Popa had when he made the phone calls. Insofar as the intents to annoy, to abuse, or to harass were implicated, the statute fails 6

7 intermediate scrutiny as applied to Popa s conduct; insofar as the jury may have found an intent to threaten, there is no evidence to support the finding. We therefore vacate Popa s conviction. United States v. Popa, 187 F.3d 672, 678 (D.C. Cir. 1999). Second, the District of Columbia Court of Appeals has instructed, specifically in the context of an allegation of Stalking, that statements to third persons, even if defamatory, do not amount to criminal conduct. We agree with the trial judge, however, that Richardson s claims that Easterling defamed him do not implicate the Intrafamily Offenses Act. If the representations allegedly made by Easterling about Richardson were both defamatory and false, Richardson had an obvious remedy in tort. A defamatory statement is not, however, a criminal act. Moreover, an order prohibiting Easterling from making representations to others regarding Richardson s allegedly culpable conduct at least arguably constitutes constitutionally impermissible prior restraint of speech; ordinarily, equity does not enjoin a libel or slander. Comm. for Creative Non- Violence v. Pierce, 259 U.S. App. D.C. 134, 143, 814 F.2d 663, 672 (1987). The Intrafamily Offenses Act should be construed so as to avoid serious doubts as to their constitutionality. Riggs Nat l Bank v. District of Columbia, 581 A.2d 1229, 1242 (D.C. 1990) (quoting Communications Workers of Am. v. Beck, 487 U.S. 735, 762 (1988)). Richardson v. Easterling, 878 A.2d 1212, (D.C. 2005) [parallel citations omitted]. Third, that this Court s prohibiting the Respondent from speaking to third persons not before the Court, amounted to, and amounts to now, unconstitutional prior restraint of speech. Richardson specifically states this and this Court is unquestionably bound by such controlling authority. More recently, the Respondent cited to a Second Circuit case which not only supported his contention that this Court violated the First Amendment by its prohibition of the Respondent speaking to third parties, the case also vacated a thirty year old consent order for the same reason by operation of Rule 60(b). The 1933 order was extremely broad in its terms. It restrained the defendant from publishing any report, past, present or future, about certain named persons. It is 7

8 true that the order arose out of a libel action. But even assuming, contrary to authority, American Malting Co. v. Keitel, 209 F. 331 (2 Cir., 1913), that it is proper for a federal court to enjoin a libel, the order here in question was not directed solely to defamatory reports, comments or statements, but to any statements. In fact, from all that appears, it would seem that whatever The Bradstreet Company published in 1932 was not libelous as to Lloyd Crosby. Lloyd Crosby contends that the order was entered on consent and that Bradstreet is bound by contract to refrain from publishing matter about him. We disagree. We are concerned with the power of a court of the United States to enjoin publication of information about a person, without regard to truth, falsity, or defamatory character of that information. Such an injunction, enforceable through the contempt power, constitutes a prior restraint by the United States against the publication of facts which the community has a right to know and which Dun & Bradstreet had and has the right to publish. The court was without power to make such an order; that the parties may have agreed to it is immaterial. The order dated July 8, 1933 was in violation of the First Amendment to the Constitution, see Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931). Shelley v. Kraemer, 334 U.S. 1 (1948) indicates that the First Amendment limits court action. The order was void, and under Rule 60(b)(4) of the Federal Rules of Civil Procedure, the parties must be granted relief therefrom. Crosby v. Bradstreet Co., 312 F.2d 483, 485 (2d Cir.) [parallel citations omitted] cert. denied 373 U.S. 911 (1963). Starting with the Respondent s Motion of July 12, 2010, and continuing with each paper filed with this Court, the Respondent s argument in support of these points has been cogent, authoritative and well-annotated. At no time, in multiple filings in three different cases, has the Petitioner ever offered any legal argument in rebuttal of these points. The Petitioner, who now ironically complains of the Respondent s harassment and needlessly increasing her costs of litigation, had her attorneys file a 225 page motion to interfere with the Respondent s Motion to Seal in the Superior Court criminal case the Petitioner improperly initiated. Nowhere within this motion did the Petitioner at any time offer legal argument which rebutted the Respondent s repeated argument that her allegations did not amount to a violation of District of Columbia law. The Petitioner could not even begin to 8

9 demonstrate that she even had standing to make the motion in the first place. After an extensive delay, the United States Attorney s Office itself filed a nonsensical short opposition to the Respondent s Motion to Seal, itself lacking any argument whatsoever refuting the Respondent s authoritative demonstration of a complete absence of criminal conduct within the Petitioner s contrived application for his arrest warrant. The United States Attorneys Office had previously addressed these issues somewhat in response to the Respondent s Motion to Dismiss in the criminal case, but the Respondent so thoroughly savaged the few weak points and authorities made by the United States Attorney in opposition that the case was voluntarily dismissed immediately thereafter. The Superior Court has never ruled on any of these issues and has certainly given no indication that the Respondent was incorrect in any regard. 2 Despite the pendency of these cases since June of 2010, the Petitioner has never once been able to demonstrate that the Respondent is incorrect in his legal argument asserting that there was no crime alleged, and therefore this Court had no jurisdiction to compel him to appear before it. The Respondent s argument is plainly supported by the existing law and the Petitioner s Rule 11 claim fails outright on this point. 2. The Petitioner s attorneys have failed to demonstrate that the Respondent s Motion was brought for any improper purpose. Starting in June of 2010, this Court has unlawfully deprived the Respondent of his freedom of speech, his freedom of movement and his right to carry firearms and conduct his business affairs. The Respondent is a member of the United States Supreme Court 2 Certainly this Court had ample opportunity to address Richardson in its Order denying the Respondent s Motion in Limine, but instead simply ignored what is obviously a controlling case on point. 9

10 Bar and admitted to practice in three Federal Circuits. He has been a uniformed law enforcement officer for over 18 years. He previously served as a criminal prosecutor for the District of Columbia, a Special Assistant Corporation Counsel. He is a firearms instructor for the Virginia Department of Criminal Justice Services. Due to the Superior Court s failure to perform fundamental gate-keeper and fact-finding functions, the Respondent, who had no prior criminal record whatsoever, was arrested, imprisoned, prosecuted and repeatedly compelled to appear before this Court in violation of District of Columbia law. This Court has never addressed the Respondent s argument that there was no criminal offense alleged by the Petitioner, but it permitted the Petitioner to repeatedly speculate and insinuate without any factual foundations a multitude of allegations which the Court used to arrest the Respondent and indefinitely deprive him of his liberties. The Respondent s capitulation to the Court s coercion in accepting the Consent Order was not sufficient for the Petitioner. Once she received the Consent Order, she used it to further slander the Respondent and deprive him of his ability to earn a living. The Respondent immediately sought relief from this Court. At stake was over $244, in attorney s fees immediately due to the Respondent for work performed on behalf of the former Chairman of the police union. See Gerald Neill decl. This matter, set for an evidentiary hearing on November 9, 2010, was postponed and has never been rescheduled, solely because of the Petitioner s employment of the Consent Order to improperly interfere with the proceedings. See Resp t Ex. C. The Respondent has demonstrated to this Court that the entirety of the criminal and civil protection proceedings was initiated by the Petitioner for an improper purpose, 10

11 to undermine the Respondent s claims of the Petitioner s time and attendance fraud. But this Court failed to perform a required factual inquiry into the Respondent s allegations and improperly summarily denied the Respondent relief. See Minor v. Springfield Baptist Church, 964 A.2d 205 (D.C. 2009) ( the trial court must make findings of fact and explain its reason(s) for either granting or denying a Rule 60(b) motion requesting relief for excusable neglect or good cause ). Throughout these proceedings, this Court has had ample opportunity to conduct inquires as to the legal and evidentiary sufficiencies of the Petitioner s allegations. The Court has needlessly and wrongfully prolonged these proceedings, now to the Petitioner s detriment. On May 31, 2010, the Petitioner petitioned the Magistrate s Office of the City of Alexandria for an arrest warrant and a protection order against the Respondent for the same allegations herein. The magistrate on duty conducted an appropriate inquiry into the Petitioner s allegations and correctly informed her that no crime had been committed. The Petitioner was refused both a warrant and the protection order. Had the Petitioner accepted this determination, as she should have, she would have incurred no costs in the present litigation, such litigation would have never occurred, and she certainly would not be now facing a federal civil rights lawsuit in U.S. District Court, a lawsuit in which both the District of Columbia government and the police union have flatly refused to provide her with any legal representation. But she did not accept this determination. On June 22, 2010, the Petitioner again attempted to obtain a warrant and protection order, this time from the Magistrate s Office of Arlington County. Again, the magistrate on duty conducted an appropriate inquiry into the Petitioner s allegations and came to the same correct conclusion as the first 11

12 magistrate that no crime had been committed. Still undeterred, the Petitioner applied to the D.C. Superior Court, despite the fact that both she and the Respondent are residents of Virginia, now employing her friends and co-workers of the First District in concert. As she may well now regret, the Superior Court failed completely in conducting any such inquiry. Both the arrest warrant application and the Petitioner s petition for the temporary protection order were bereft of the elements of any offense under District of Columbia and lacked even the flimsiest evidentiary foundation for the insufficient allegations she did make. 3 This Court s failure to remedy its own obvious mistake upon express notice from the Respondent has perpetuated a serious deprivation of the Respondent s rights and unnecessarily prolonged these proceedings indefinitely. The Respondent is not to blame for now attempting to vindicate his civil rights. Setting aside the Petitioner s misconduct, which she must now answer for in District Court, this Court is certainly to blame for not putting a stop to proceedings where the Petitioner did not have enough sense herself to stop, she having been informed twice by judicial authorities in her home jurisdiction that no crime had been committed by the Respondent. Cognizance of this type of improper forum shopping alone by a sworn police officer should have been cause enough for this Court to end these proceedings and vacate the improper Consent Order. 3 The Petitioner offers an purportedly from the Respondent as evidence that he sent a copy of a court filing to the Petitioner s parents. Aside from the obvious lack of probative value of the allegation, the on its face amounts to an express denial of the conduct alleged. The demonstrates the exact type of unsupported speculation repeatedly offered to this Court by the Petitioner for the majority of her prior allegations - someone else received an , and the Petitioner thinks that the Respondent might have been the person who sent it. Other than communications received directly by the Petitioner, she has never offered any type of competent evidence that the Respondent ever spoke to any other person about her. Yet this Court never questioned this improper type of speculation and permitted her to proceed. 12

13 Since July 12, 2010, each filing by the Respondent has been a direct result of the failure of this Court to end what should have never been started. Upon each filing by the Respondent, this Court has had ample opportunity to undo what should not ever have been done. The Respondent s present Motion to Vacate the Void Consent Order is necessary and proper because the Court failed to vacate the Consent Order when the Respondent presented his first Rule 60(b) motion. The first Rule 60(b) Motion was necessary and proper because this Court improperly perpetuated a civil protection proceeding where it had no jurisdiction to do so and in doing so, violated District of Columbia law and deprived the Respondent of any semblance of due process. The Motion to Vacate the Void Consent Order is not brought for any improper purpose and the Petitioner s motion fails in its entirety. 4 CONCLUSION For these reasons, and for such other reasons as the Court finds to be good and sufficient cause, the Petitioner s Motion for Rule 11 sanctions should be DENIED. If the Court is truly concerned for the Petitioner s continuing expense incurred in these proceedings, it should grant the Respondent s Rule 59(e) Motion and direct the Respondent to seek a limited remand from the Court of Appeals so that this Court may 4 The Petitioner s attorneys simultaneously allege that the Respondent failed to preserve for appeal the very issues raised in the Motion to Vacate the Void Consent Order and yet the Motion is frivolous and brought for an improper purpose. Using the Motion to unquestionably preserve these issues for appeal is a very proper purpose in and of itself and certainly was a primary motivation for the Respondent to have filed it. See Sorbo v. UPS, 432 F.3d 1169, (10 th Cir. 2005); McKethan v. Texas Farm Bureau, 996 F.2d 734, 744 (5 th Cir. 1993); Ingraham v. United States, 808 F.2d 1075, (5 th Cir. 1987) (citing Commonwealth of Puerto Rico v. SS Zoe Colocotroni, 601 F.2d 39 (1 st Cir.1979); Washington v. Board of Education, 498 F.2d 11 (7 th Cir.1974)). 13

14 vacate the September 21, 2010 Consent Order for the reasons stated within the Respondent s Rule 60(b) Motions. Respectfully submitted, this sixth day of May, 2011, Matthew August LeFande 4585 North 25 th Road Arlington VA Tel: (202) Fax: (202) matt@lefande.com Respondent, pro se 14

15 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Opposition was served via United States Postal Service First Class Mail, postage prepaid, to the Petitioner s counsel of record at the following address, this sixth day of May, Stephen L. Neal DimuroGinsberg, PC 908 King Street, Suite 200 Alexandria VA Matthew LeFande 15