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IN THE UNITED STATES DISTRICT COURT

NOTHERN DISTRICT OF OKLAHOMA

Raymond G. Chapman, individually ) Case No. 04-CV-0722-CVE-PJC

and on behalf of all persons similarly situated, )

Plaintiff, )

vs. ) AGGRAVATED CUSTODIAL

) INTERFERENCE

The State of Oklahoma: )

) Governor

Brad Henry; )

W.A. Drew Edmondson (Attorney General); )

Joseph Watt (Chief Justice, Okla. Supreme Court); )

Defendants.

MOTION FOR RECONSIDERATION

I, Raymond G. Chapman do not give up or release any of my rights.

Further acts by Judge Mark Barcus, which violate my rights will be reported to, Governor Brad

Henry, Sen. Scott Pruitt, U.S. Chamber Institute for Legal Reform, Counsel Office of

Professional Responsibility, Attorney General Drew Edmondson, Federal Judicial Center,

and Court of Appeals for the Circuit in compliance with 128 U.S.C. § 351 et. seq. 2

PEREMPTORY CHALLENGE County of Tulsa and within the United States District Court for the

Northern District of Oklahoma, being duly sworn, deposes and says: That Raymond G. Chapman, is Sui

Juris to the within action. That Mark Barcus and Kyle Haskins are Judges, in a hearing in the aforesaid

action is pending to whom it is assigned, is prejudiced against the party, so that affiant has not, can not,
or believes that he cannot have a fair and impartial trial or hearing before the judges, court

commissioner, or referee as described herein. That the aforementioned judges are acting in conspiracy

with Jodi Johnson Baker (an attorney) and Rosemarie L. Damilao (former girlfriend) to deprive

Chapman of his duly protected Constitutional rights and that this court’s continual denial of their

intervention in this matter as co-defendants is the denial of the protections of Chapman’s Constitutional

rights. That the lower court has no lawful authority to issue any order which violates the Supreme law of

the land. That the Oklahoma Bar Association is bound by duty and the rules as given by the Supreme

Court of Oklahoma, to discipline those attorneys which violate either written law or the Rules of

Professional Conduct for Attorneys.

This court cannot invoke judicial immunity for acts that violate litigants civil rights; Robert Craig

Waters. Tort and Insurance Law Journal, Sup. 1986 21 n3, p509-516.

Article VI of the Constitution makes the Constitution the “supreme law of the land” and “the judges in

every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary

notwithstanding”. The first Amendment to the U.S. Constitution states that all entities have the

mandatory right of an adequate, complete, effective, fair, full, meaningful and timely access to the court.

The Fifth and Fourteenth Amendment to the U.S. Constitution guarantees Due Process and equal

protection rights, therefore any violation of these provisions by a judge, as outlined in the U.S.

Constitution deprives that person from acting as a judge under the law and is then acting not as a judge

but as a private citizen which subsequently then forces that court to lose subject matter jurisdiction, at

which point the judge loses any immunity enjoyed. Understandably, the U.S. Supreme Court has clearly

and repeatedly, held that any judge who acts without jurisdiction is engaged in an act of treason. U.S. v.

Will, 449 U.S. 200, 216, 101, S. Ct. 471, 66 L.Ed. 2d 392, 406 (1980). “Where there is no jurisdiction,

there is no discretion, for discretion is incident to jurisdiction.” Piper v. Pearson, 2 Gray 120, cited in

Bradley v. Fisher, 13 Wall, 335. 20 L.Ed. 646 (1872). Accordingly, an act done in complete absence of

all jurisdiction cannot be a judicial act and therefore destroys immunity.

When a judicial officer acts entirely without jurisdiction or without compliance with jurisdiction

requisites he may be held civilly liable for abuse of process even though his act involved a decision
made in good faith, that he had jurisdiction. State use of Little v. U.S. Fidelity & Guaranty Co., 217

Miss. 576, 64 So. 2d 697.

Although certain acts may be of a judicial nature and therefore entitles a judge to immunity, the

jurisdictional vacuum (that is, absence of all jurisdiction) the second prong necessary to absolute judicial

immunity, is missing. Stump v. Sparkman, id., 435 U.S. 349.

The principle of law was stated by the U.S. Supreme Court as “Courts are constituted by authority and

they cannot go beyond that power delegated to them. If they act beyond that authority, and certainly in

contravention of it, their judgments and orders are regarded as nullities. They are not voidable, but

simply void, and this is even prior to reversal.” [Emphasis added]. Valley v. Northern Fire and Marine

Ins. Co., 254 U.S. 348, 41 S. Ct. 116 (1920). See also Old Wayne Mut. I. Assoc. v. McDonough, 204

U.S. 8, 27 S.Ct. 236 (1907); Williamson v. Berry, 8 How. 495, 540, 12 L. Ed. 1170, 1189, (1850); Elliot

v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828).

“A void judgment is one that has been procured by extrinsic or collateral fraud, or entered by a court

that did not have jurisdiction over the subject matter or the parties.” Rook v. Rook, 353 S.E.2d 756, (Va.

1987).

“ When rule providing for relief from void judgments is applicable, relief is not discretionary but is

mandatory”. Orner v. Shalala, 30 F.3d 1307, (Colo. 1994).

In Gomillion v. Lightfoot, 364, U.S. 155 (1966), cited also in Smith v. Allright, 321 U.S. 649, 644,

“Constitutional ‘rights’ would be of little value if they could be indirectly denied”. In Miranda v.

Arizona, 384 U.S. 426, 491; 86 S.Ct. 1603, “Where rights secured by the Constitution are involved,

there can be no ‘rule’ making or legislation which would abrogate them.”

See Norton v. Shelby County, 118 U.S. 425 p. 442, “An unconstitutional act is not law; it confers no

rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as

inoperative as though it had never been passed”.

Warnock v. Pecos County, Texas, 88 F3d 341 (5th Cir. 1996) states, “Eleventh Amendment does not

protect state officials from claims for prospective relief when it is alleged the state officials acted in

violation of federal law”.


Butz v. Economou, 98 S. Ct. 2894 (1978); United States v. Lee, 106 U.S. at 220, 1 S.Ct. at 261 (1882):

“No man [or woman] in this country is so high that he is above the law. No officer of the law may set

that law at defiance with impunity. All the officers of the government from the highest to the lowest are

creatures of the law and are bound to obey it”.

“It is the only supreme power in our system of government, and every man who, by accepting office,

participates in its functions, is only the more strongly bound to submit to that supremacy, and to observe

the limitations which it imposes on the exercise of the authority which it gives”.

Cannon v. Commission on Judicial Qualifications (1973) 10 Cal. 3d 678, 694; “Acts in excess of

judicial authority constitutes misconduct, particularly where a judge deliberately disregards the

requirements of fairness and due process”. Also see Gonzales v. Commission on Judicial Qualifications,

(1983) 33 Cal. 3d 359, 371, 374.

“Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites

every man to become a law unto himself; it invites anarchy” Olmstad v. United States, (1928) 277 U.S.

438.

Under Article I, Section 9 & 10 respectively prohibits judicial immunity stating “No title of Nobility

shall be granted by the United States” and “No state shall…grant any title of Nobility”.

All judges are required to take an oath of office and are solemnly committed thereto by that oath

pursuant to Article VI cl. 3 “to support this Constitution” and any judge who does not comply with his

oath to the Constitution of the United States wars against that Constitution and engages in acts in

violation of the supreme law of the land. The Supreme Court has stated that “No state legislator or

executive or judicial officer can war against the Constitution without violating his undertaking to

support it” See in Re. Sawyer, 124 U.S. 200 (188); U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.

Ed. 2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L. Ed 257 (1821).

“A judge must be acting within his jurisdiction as to subject matter and person, to be entitled to

immunity from civil action for his acts” Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938).

"[S]ince Ex parte Young, 209 U.S. 123 (1908), it has been settled that the Eleventh Amendment

provides no shield for a state official confronted by a claim that he had deprived another of a federal
right under the color of state law. Ex parte Young teaches that when a state officer acts under a

state law in a manner violative of the Federal Constitution, he "comes into conflict with the superior

authority of that Constitution, and he is in that case stripped of his official or representative character

and is subjected in his person to the consequences of his individual conduct. The State has

no power to impart to him any immunity from responsibility to the supreme authority of the United

States." Id., at 159-160. (Emphasis supplied). Ex parte Young, like Sterling v. Constantin, 287 U.S. 378

(1932), involved a question of the federal courts' injunctive power, not, as here, a claim for monetary

damages. While it is clear that the doctrine of Ex parte Young is of no aid to a plaintiff seeking damages

from the public treasury, Edelman v. Jordan, supra; Kennecott Copper Corp. v. State Tax Comm'n, 327

U.S. 573 (1946); Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459 (1945); Great Northern Life

Insurance Co. v. Read, 322 U.S. 47 (1944), damages against individual defendants are a permissible

remedy in some circumstances notwithstanding the fact that they hold public office. Myers v. Anderson,

238 U.S. 368 (1915). See generally Monroe v. Pape, 365 U.S. 167 (1961); Moor v. County of Alameda,

411 U.S. 693 (1973). In some situations a damage remedy can be as effective a redress for the

infringement of a constitutional right as injunctive relief might be in another."

Accordingly, in Harris v. McRae, 448 U.S. 297 (1980), it is well established that, quite apart from the

guarantee of equal protection, if a law “impinges upon a fundamental right explicitly or implicitly

secured by the Constitution [it] is presumptively unconstitutional.” Mobile v. Bolden, 446 U.S. 55, 76

(plurality opinion).

PARTIES

Mark Barcus- Upon her departure from Chapman's home, Damilao illegally stole the parties minor

child from Chapman without any type of court order either granting Damilao custody or restricting

Chapman's time with his son. Chapman commenced filings with the state court and the case was

assigned to Judge Mark Barcus. Chapman filed at least two writs and numerous other filings to get into

the court quickly in order to see his son, all of which were denied by Barcus. After approximately 2.5

months, Chapman finally got in to court and Barcus subsequently assessed child support against

Chapman with an automatic arrearage despite the fact that Chapman was trying feverishly to see his
son. Barcus additionally restricted Chapman's time with his son without any form of proof other than

mere accusation against Chapman. This automatic arrearage opened the door for a contempt of court

of which Chapman was later illegally found guilty of in Haskins court (See Below). The time missed

between Chapman and his son was never addressed by Barcus nor was Damilao ever punished.

Chapman, who was Pro Se was most definitely the victim of blatant discrimination by Barcus for

Chapman asserting his rights. To further substantiate this claim Chapman asserts that Barcus has further

ruled against Chapman each and every time Chapman has been in court. The transcripts of the

proceedings can and will be supplied upon request or at trial in this matter.

Chapman, citing Alva State Bank and Trust Co. v. Dayton, 1988 OK 44, 755 P2d 635

argued his financial privacy status upon the hearing of his Motion to Quash Damilao's subpoena of

Chapman's financial records. Despite Chapman's Motion to Quash concerning his financial records and

privacy rights under the Fourth Amendment, Barcus nonetheless ordered Chapman's motion overruled

and allowed Chapman's private records into the public record. ¶12 of the Alva case states: “In ordering

the production of records in a manner other than that provided by statute, the trial court acted in a

manner not authorized by, and contrary to law”. See Art. 4, Okla. Const. §1. See also, Luger v.

Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed 482 (1982); Sniadach v. Family Finance

Corp.., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349(1969). In ¶12 Congress has specifically proscribed

certain governmental access to one's financial records “except under limited circumstances.” The Right

to Financial Privacy Act limits this access to 1. if the customer authorizes such disclosure 2. the records

are disclosed in response to an administrative subpoena or summons 3. the records are disclosed in a

response to a search warrant 4. disclosed in a judicial subpoena 5. in response to a formal written

request. Even records subject to a judicial subpoena “are limited to subpoenas authorized by law where

the records are part of a legitimate law enforcement inquiry (in this case, there was no law enforcement

inquiry and Chapman was not being investigated for any illegal activity).

¶8 In Peterson v. Idaho First Nat'l Bank, 83 Idaho 578, 367 P2d 284, 92 A.L.R.2d 891 (1961), the Idaho

Supreme Court recognized the right of a customer to be secure in his/her business papers as one of the

inherent and fundamental precepts of the banking relationship. In reviewing decisions by various courts,
the Court recognized the Fourth Amendment's guarantee of “the right of the people to be secure in

their...papers...” and that this right extended to the inviolate status of bank accounts against unreasonable

search.

¶11 The right to privacy has been defined as the “claim of individuals, groups, or institutions to

determine for themselves when, how, and to what extent information about them is communicated to

others”. The guarantee of security found in art. 2, ¶ 30 of the right of the people to be secure in their

papers encompasses the people's right to preserve confidentiality in their personal papers. This

security,which must be strictly construed, is a fundamental, constitutional right applicable to both civil

and criminal actions. See United States v. Freie, 545 F2d. 1217, 1223 (9th Cir 1976); Djowharzadeh v.

City Nat'l Bank and Trust Co., supra at 616-20; Humphers v. First Interstate Bank, 298 Or. 706, 696

P.2d 527-28 (1985).

It is the fundamental axiom of the court's jurisprudence that a citizen must have a cognizable

expectation of privacy. Rakas v. Illinois, 439 U.S. 128, 58, L.Ed.2d 387, 99 S. Ct. 421 (1978).

In Eisenstadt v. Baird, 405 U.S. 438, 453, the court recognized “the right of the individual, married or

single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a

person. 410 U.S. 113, 170.

Title 6 Section 2204 of the Oklahoma Financial Privacy Act outlines the criteria in which the court

must use in order to issue a subpoena for the financial records of an individual citizen.

A. A court of competent jurisdiction, state agency or legislative committee may issue a subpoena for a

customer's financial records only if such subpoena is authorized by law.

There is no law which allows for financial disclosure of bank statements within the state of Oklahoma

for anything other than criminal activity and Chapman was certainly not being investigated for criminal

activity.

The determination for the admission or exclusion of evidence is left to the trial court's discretion. The

trial court's discretion will be overturned only if there is clear abuse of discretion. U.S. v. Hill, 627

F. 2d 1052, 1055 (10th Cir. 1980).

An individual has a right to a reasonable expectation of privacy, particularly where as is contained


herein a conspiracy is charged. individual conspirators should be tried together. Hines, Supra at 732.

Despite false allegations from Damilao in Barcus' court, and despite an expert witness testifying in

behalf of Chapman, Barcus illegally diagnosed Chapman from the bench as having some type of issue

with alcohol. This was done completely contrary to the expert witnesses' true and accurate testimony in

Chapman's behalf. A judicial officer, making a diagnosis from the bench [for something of which he is

not trained in], is construed as a non-judicial act and is unconstitutional and illegal. The first prong of

the functional approach asks whether the function is one “normally performed by a judge.” (a diagnosis

from the bench is not something of which a judge would normally have within his scope of practice, as a

judge is versed in law only and is therefore not capable of a diagnoses of any medical condition and

should be bound to rely on duly trained professionals). Stump, 435 U.S. at 362. Also see Sevier v.

Turner, 742 F2d 262 (6th Cir. 1984). Barcus has at this point lost all subject matter jurisdiction and all

decisions rendered thereafter are illegal and therefor punishable by law. Barcus has waived all

immunitydue to loss of subject matter jurisdiction and therefore all jurisdiction is lost.

Furthermore, the framers of the Constitution had in no way granted immunity to judicial officers and

this same immunity isn't among any written law passed by the Congress of the United States, therefore

judicial immunity is not absolute. See Bracey v. Gramley, 519 U.S. 1074, 117 S.Ct. 726 (1997).

Barcus has held Chapman to a much high standard than attorney Baker in his child custody proceedings

by making Chapman hold to standards that the attorney Baker is obviously not held. Chapman has

asserted his rights numerous times only to be overruled by Barcus thereby violating Chapman's right to

a fair and impartial trial. These violations are done brazenly and without regard to Chapman's rights and

this court can in no way “assume” that either Barcus or Haskins have not waived immunity as outlined

in a previous order from this court. If this court attempts to assert the immunity for these individuals,

then this court is then acting as the attorney for the two which is also acting in concert with the

conspiracy for the deprivations of Chapman's Constitutional rights. This court then loses subject matter

jurisdiction in the matter and can render no additional orders. See above in reference to judicial

misconduct. If Constitutional violations are the norm instead of the exception the Constitution isn't a

valid authority and the Judicial is no longer bound by that authority and it would be at that point that
the United States is no longer a free country but a monarchy of which the forefathers warned against.

The simple fact remains, while a Judge may issue orders to control his court, he has no lawful authority

to issue any order which violates the Supreme Law of the Land. The First Amendment to the U.S.

Constitution states that all entities have the mandatory right of an adequate, complete, effective, fair, full

meaningful and timely access to the court. If this were not indeed the case, why have it in the

Constitution in the first place? This is clearly directed to the judiciary which obviously the judiciary has

evidently chosen to ignore.

The Fourteenth Amendment to the U.S. Constitution provides that the interest of parents in the care,

custody and control of their children, is perhaps the oldest of the fundamental liberty interests

recognized by the court, Troxel V. Granville, USC, (2000). "Parents have a liberty interest of the

custody of their children, hence, any deprivation of that interest by the state must be accomplished by

procedures meeting the requirements of due process." Hooks v Hooks, United States Court of Appeals

(1985). Indeed, the right to rear one's children is so firmly rooted in our culture that the Unites States

Supreme Court has held it to be a fundamental liberty interest protected by the Fourteenth Amendment

to the United States Constitution. Hawk v. Hawk, Tennessee Supreme Court, (1993). The Fifth and

Fourteenth Amendment guarantees Due Process and Equal Protection to all.

Kyle Haskins- An Oklahoma state judge engaged in an egregious discrimination against Chapman by

illegal acts of practicing law from the bench. In a hearing held on May 5th, 2005 in Haskins court,

Chapman was attending an attorney fee hearing. The opposing attorney, Jodi Johnson Baker proceeded

to give her opening statement. At its' conclusion and without Chapman's attorney's opening, Haskins

proceeded to inform Chapman's attorney of the statute which had evidently been pre-determined and on

which the court was going to rely to determine the outcome of the proceeding. This mention of the

statute by Haskins was never mentioned by Baker in this proceeding thereby making Haskins guilty

violation of Chapman's duly protected constitutional provisions and making Haskins guilty of

practicing law from the bench. Haskins further aggravated the situation and clearly abused his authority

by conducting ex-parte communication with Chapman's state court attorney two days later, while

Chapman's attorney was in Haskins court in an unrelated case and without a scheduled hearing. This
was done in open court yet neither Chapman nor the opposing side was present, in clear violation of the

Fourteenth Amendment and Chapman's right to a fair trial. Haskins additionally forced a pro-bono case

[on Chapman's state court attorney] by duress (for something Chapman allegedly said outside the

judge's court the next day of which Chapman's attorney had no knowledge of ). Thereby, additionally

violating that same attorney's rights under the Fifth Amendment. This is not only unethical but

additionally renders it useless to have this same attorney act in Chapman's behalf due to his probable

fear of additional retribution from the court. This fear will undoubtedly make Chapman's attorney less

than aggressive in Chapman's case and it's this unwarranted fear which has caused Chapman

unnecessary attorney expense of which Haskins should be held accountable.

The practice of law from the bench is a brazen illegal and negates Chapman's right to a fair hearing,

as does the illegal ex-parte communication as well as the unscheduled hearing. Again, as with Barcus

above. Haskins has lost all jurisdiction in the case and any determination to the rights of Chapman are

void and the door is wide open for suit sanctions against Haskins under authority 42 U.S.C. Section

1985(3) and 42 U.S.C. Section 1986).

“Judgments entered where a court lacked either subject matter or personal jurisdiction, or that were

otherwise entered in violation of due process of law, must be set aside,” Jaffe and Asher v. Van Brunt,

S.D.N.Y. 1994, 158 F.R.D. 278. See Mitchell v. Forsythe, 472 U.S. 511, 526 (1985) and the Federal

Tort Claims Act, 28 U.S.C.. Any judge or attorney who does not report another judge for treason as

required by law may themselves be guilty of misprision of treason. 18 U.S.C. § 2382. The award of

attorney fees levied against Chapman after these unconstitutional acts are therefore illegal and should be

rendered void. Haskins had also found Chapman guilty of Contempt of court for non-payment of child

support without Haskins first doing fact finding upon a no contest agreement by Chapman for payment

of an illegal arrearage of which Barcus put Chapman in automatically in a previous hearing for child

custody and child support (See above). This unconstitutional act was done purposely and is further

deprivation of Chapman's right to fair treatment under the law.

Title 18, U.S.C. Section 242; Deprivation of Rights Under Color of Law: This statute makes it a crime

for any person acting under color of law, statute, ordinance, regulation or custom to willfully deprive or
cause to be deprived from any person those rights, privileges or immunities secured or protected by the

Constitution and laws of the U.S. . This law further prohibits a person acting under color of law, statute,

ordinance, regulation or custom to willfully subject or cause to be subjected any person to different

punishment, pains or penalties, then those prescribed for punishment of citizens on account of such

person being an alien or by reason of his/her color or race.

Acts under “color of law” include acts not only done by federal, state, or local officials within the

bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their

lawful authority; provided that, in order for unlawful acts of any official to be done under “color of any

law,” the unlawful acts must be done while such official is purporting or pretending to act in the

performance of his/her official duties. This definition includes, in addition to law enforcement officials,

individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security Guards, etc.,

persons who are bound by laws, statutes, ordinances or customs.

Jodi Johnson Baker OBA #19498 has conspired against Chapman and in concert with Barcus, Haskins

and Damilao in order to deprive Chapman of his Constitutional rights. Baker has alluded to certain

issues which are not only for purposes of defamation but to prejudice the court. Her blatant acts are

wholly unconstitutional and lack the professional decorum bestowed on a professional attorney at law.

The Oklahoma State Bar Association's standards of professional conduct and civility prescribe

principles that Baker, as a professional attorney, routinely disregards. While it would be impossible,

within this document, to recite the exhaustive list of Baker's uncivil and unprofessional efforts, a review

of the record reveals numerous examples for the Court's consideration, which can and will be provided

to this court upon request.

While the Oklahoma Bar standards are “voluntary” by their terms, the Supreme Court has recognized

that the “Courts of justice are universally acknowledged to be vested, by their very creation, with power

to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates”.

Chambers v. NASCO Inc., 501 U.S. 32, 43 (1991)(quoting Anderson v. Dunn, 6 Wheat. 204, 227

(U.S. 1921). See generally Jaen v. Coca-Cola Co., 157 F.R.D. 146, 152-53 (D.P.R. 1994)(discussing

role of civility in litigation). If one does not report the criminal activities of judges within the system,
they become principals in that same criminal activity. 18 U.S.C. § 2, 3 and 4.

Baker, as counsel for Damilao had instructed Damilao to hide Chapman's and Damilao's son from

Chapman in violation of 43 O.S. § 111.2 of the Oklahoma Statutes. This statute gives Chapman the

authority for an action at law against this illegal criminal activity. Additionally, Damilao had stolen

some of Chapman's belongings to the knowledge and/or consent of Baker in violation of Rule 4.1 of

the “Code of Conduct for Attorneys” for the state of Oklahoma. Baker has violated numerous

provisions of the “Rules” such as: Rule 4.4 Respect for Rights of Third Person; DR-7-102 (A) (1); DR-

7-106 (C) (2); Rule 8.4 Misconduct; Rule 8.4 (a)-(f), DR-1-102 (A). In state v. Raskin, 1982 OK 39 ¶ 16

642 P. 2d 262 the court outlines their task to “protect the public and to preserve the public confidence

in the legal profession and in the judiciary that licenses them...”.

Baker is in further violation of the following: Rule 1.1 Competence' Rule 1.2 Assisted client in conduct

that she knew was criminal; Misleading Legal Argument; Rule 1.6 Aiding in illegal activity; Rule 3.4

Fairness to Opposing Party; Rules 3.5; Rule 4.4 Does not imply that a lawyer may disregard the rights of

a third person; DR-7-102 (A) (1) Taken action to harass; Rules 5.1, 8.1, 8.3 and 8.4. Accordingly,

referencing State of Oklahoma Ex. Rel Oklahoma Bar Association v. Darril Lonnie Holden 895 P. 2d

707 which states in part: Ҧ 16 Attorney misconduct related to the parent-child relationship is a serious

matter”.

Baker has violated the following provisions of the Constitution: Article III Section 2; Article IV Section

2 ans 18 USC § 3231; 28 USC § 1331; 28 USC § 1343; 28 USC § 1443; 28 USC § 2000b; 42 USC §

1985, 1986, 1988, 2000b and 2000b-2 of the United States Code.

The provisions of the Oklahoma Constitutional violations are: Art. 2 § 7 Due Process of Law; Art. 2 §

21 Self-Incrimination-Double Jeopardy; Art. 2 § 22 Liberty of Speech and Press (Baker alluded to

Chapman's “Pro-Se Manual” in Barcus' court which served no purpose other that to prejudice the

court); Art. 2 § 30 Unreasonable Searches and Seizures (Due to the unlawful aquirement of Chapman's

financial records).

This court is under duty to impose punishment under 18 USC § 241 and 242 in the kidnapping and/or

assisted kidnapping of Chapman's son. This, as well as other law as outlined herein.
Baker has additionally mentioned in each respective court the things of which Chapman complains of

about Baker. These mentions of complaints against Baker being brought to the attention of the judges

have no other purpose that to harass Chapman and polarize the judge against Chapman, which Chapman

asserts has worked to Baker's advantage thus far.

Rosemarie L. Damilao has conspired against Chapman and in concert with Barcus, Haskins and Baker

in order to deprive Chapman of his Constitutional rights. Damilao has alluded to certain issues which

are for purposes to defame Chapman and further to prejudice the court. Damilao has committed blatant

perjury in court on numerous occasions and has caused directly and/or indirectly grievous harm to

Chapman and his son. The United States Supreme Court in a long line of decisions, has recognized that

matters involving marriage, procreation, and the parent-child relationship are among those fundamental

“liberty” interests protected by the Constitution.

While there has been absolutely no proof (where no proof exists) that Chapman has committed harm to

his son in any capacity, it has also not been proved in any capacity whatsoever that Damilao is the better

parent of the two. It's blatantly obvious that Chapman's constitutional protections are being disregarded

and perhaps and more likely than not due to the fact that he was a pro se litigant and also more than

likely his status as a male dealing with a child custody issue. It's no secret and a typical occurrence

within the courts for the mother (female) to be given custody over the father (male). This is gender

discrimination and an illegal and unconstitutional act continually perpetuated by the courts.

Historically at common law, judicial immunity does not insulate from damage liability those private

persons who corruptly conspire with a judge. 604 F.2d. 976.

As previously stated, Damilao stole the parties child in order to deny Chapman his Constitutional rights

to the care and companionship of his son. This was done openly and brazenly and evidently at the

blessing of the court. Damilao has committed numerous acts of perjury in open court and on the record

so that Chapman's rights would be denied. Although Chapman has in no way ever harmed his son,

nor would he ever harm his son, Damilao still alluded to that allegation in open court and on the record.

Damilao has worked in conspiracy with the above parties to deny Chapman his rights and this court

has the obligation and duty to receive the facts upon a trial of the merits and punish the responsible
parties accordingly.

Damilao has tried to have Chapman incarcerated in the Tulsa County jail for the illegal, automatic

arrearage in which Chapman was placed in furtherance of the denial of his rights as well as his personal

freedom.

STATEMENT IN SUPPORT OF ORAL ARGUMENT

This is an extraordinarily important case, a facial challenge to the constitutionality of two crucial

components in the State of Oklahoma’s divorce and custody machinery.

In considering this case, this Court will address the precise degree to which due process and equal

protection constrain state actions which implicate the liberty of a parent to exercise their parental rights

in their parent-child relationship.

The liberty of a parent to freely exercise their parental rights has been described by the Supreme Court

of the United States as “perhaps the oldest of the fundamental liberty interests” which “ the Due Process

Clause of the Fourteenth Amendment protects.” Troxel v. Granville, 530 U.S. 57, 65, 66 (2000). There

is arguably no more important liberty interest.

This case is about exactly how far Oklahoma state procedures may go before they cross the line between

constitutional and unconstitutional action that affects the liberty interest of every parent in every

Oklahoma divorce and custody case. Oral argument will invigorate the deliberative process with

appreciation for the implications which flow from where the Court determines the Constitution draws

the line.

Accordingly, Chapman requests oral argument.

JURISDICTIONAL STATEMENT

Jurisdiction exists in the District Court under 28 U.S.C. §1331, for constitutional questions, 28 U.S.C.

§1343, for civil rights actions, and under 28 U.S.C. §2201, for declaratory judgment relief, in respect of

the Fourteenth Amendment of the U.S. Constitution.

STATEMENT OF THE ISSUES


1. The District Court erred as a matter of law and thereby abused its discretion by failing to hold that, as

between parents who are both “fit”, each parent is vested with a liberty interest in “fundamental”

parental rights.

2. The District Court erred as a matter of law and thereby abused its discretion by failing to apply the

correct standard of review, strict scrutiny, to state action which implicates liberty interests and

fundamental rights.

3. The District Court erred as a matter of law and thereby abused its discretion by finding no

redressability if Oklahoma's standard family practices were unconstitutional.

STATEMENT OF THE CASE

A. Nature of the Case

This case presents a facial challenge to the constitutionality of Oklahoma's Family Law. The challenge

is grounded in the long history of decisions by the U.S. Supreme Court holding, in a variety of fact

situations, that parental rights are “basic civil rights” [1] and a “fundamental” type of “liberty” protected

by the Fourteenth Amendment of the U.S. Constitution.[2]

The operation of Oklahoma family law constitutes state action which directly implicates the liberty of

each parent in every Oklahoma custody case to exercise their parental rights without undue state

interference. Strict scrutiny legal analysis of these statutes in pari materia with the Constitution reveals

state action which crosses the line between constitutional and unconstitutional, because the state

procedures implicate and alter parental rights without the due process and equal protection required by

the Fourteenth Amendment of the U.S. Constitution for fundamental rights.

In his Popovich dissent, Senior Judge Ryan expressed pointed concerns related to due process issues

being raised on appeal for the first time in oral argument by an amicus and an intervener, not the

principle parties, and without development and briefing in the District Court. Popovich v. Cuyahoga

County Court of Common Pleas, Domestic Relations Division, 276 F.3d 808, ___ (6th Cir. 2002) en banc

cert. denied ____.


Unlike Popovich, from the inception of this case all three aspects of Fourteenth Amendment protection

of fundamental rights have been extensively developed and briefed in this District Court.

B. Course of Proceedings

On September 17, 2004 Petitioner filed an initial complaint (District Court case 04-CV-722-EA-C)

under numerous provisions of the United States Code, facially challenging Oklahoma Family Law

practices for inter alia violation of the Fourteenth Amendment of the U.S. Constitution, only one among

many.

The District Court immediately dismissed on the basis that Petitioner sought an injunction specific to his

state court action. Objections and responses were exchanged.

On April 21, 2005 Petitioner filed an amended complaint raising the same legal issues, while removing

all of the underlying fact based 42 U.S.C. §1983 claims and adding several defendants. By removing

the fact based claims and damage requests, and adding certain defendants, the case was simplified into a

general constitutional challenge.

Various motions and responses related to dismissal under abstention doctrines and challenges to Federal

Court jurisdiction followed.

On June 20, 2005, after additional briefing and objections, the District Court dismissed the action based

in part on Plaintiff's supposed out of time filing of his Response to the state's Motion to Dismiss.

Chapman was never sent a copy of the motion and stated accordingly to the court, nevertheless, despite

the numerous hours of time spent on these pleadings, this court simply deemed the state's Motion to

Dismiss as confessed. Although this court may dismiss a claim, it may not disregard the right of citizens

seeking redress against the state and should reconsider the last order of confession. For this court to

simply dismiss a claim of Constitutional violations for something as simple as not filing an answer to

something which Chapman never received is a miscarriage of justice.

Chapman hereby asks the District Court to enter an order withdrawing the original dismissal, and filed a

Certificate of Constitutional Question directed to the Attorney General of the State of Oklahoma.

Chapman asks the District Court enter an order which thoroughly reviews the legal authorities and asks

that it conclude: (1) various abstention doctrines are not applicable; (2) that the federal court has
jurisdiction to entertain this action; and (3) that the State of Oklahoma and all added parties should be

joined as parties to the action. (4) That the practice of family law in Oklahoma deprives citizens of their

duly protected Constitutional rights.

The District Court should enter an order joining the State of Oklahoma as a party defendant along

with all parties (Plaintiffs and Defendants) aforementioned. In response to Chapman's suit, the State of

Oklahoma would not consent to defend their laws and aggressively asserted sovereign immunity under

the 11th Amendment of the U.S. Constitution. Again, various motions and responses followed, including

additional challenges to the validity of the federal action.

To date, the case has been fully briefed, with several briefs noting various social studies data on the

detrimental affects of divorce on minor children. While the named defendants in the case offered no

brief, the State of Oklahoma as amicus filed a brief in opposition to Petitioner (hereinafter “the

Oklahoma Merits Brief”), actually a de facto defendant’s brief because the other named defendants filed

no brief.

On June 20, 2005 the District Court entered an order deeming the state's Motion to Dismiss as confessed

pursuant to Local Rule 7.1(f) thereby dismissing the action.

C. The Constitutional Question

The constitutional question, requested by Chapman of the District Court should note in a Certificate of

Constitutional Question directed to the Attorney General of the State of Oklahoma, as follows.

“Pursuant to 28 U.S.C. §2403(b), the Court hereby gives you notice that Plaintiff has filed the above-

captioned action to challenge the constitutionality of Oklahoma family and divorce law with respect to

the asserted effect of these rules and statutes to permit an Oklahoma domestic relations court to deprive

a biological parent, in a divorce or paternity situation, of equal custodial parent status without a finding

by clear and convincing evidence that the parent so deprive[d] is an unfit parent.”

This question contains the elements of a constitutional challenge on each of three Fourteenth

Amendment grounds: (1) procedural due process (“effect of this rule and statute… without a finding by

clear and convincing evidence”); (2) substantive due process (“to deprive a biological parent…of…
custodial parent status”); and (3) equal protection (“to deprive…equal…status”). Distilled to its

essence, the certified question reads as follows.

“Plaintiff has filed the… [constitutional] action to the challenge the… effect of this rule and statute… to

deprive a… parent… of equal custodial parent status without a finding by clear and convincing

evidence… the parent… is… unfit.”

SUMMARY OF THE ARGUMENT

In various contexts, parental rights have found protection in the First, Fifth, Ninth, and Fourteenth

Amendments of the U.S. Constitution. Few other rights in American jurisprudence, criminal or civil,

have found such sweeping Constitutional protections. Plaintiff brings this action to the Northern

District of Oklahoma (Tenth Circuit) seeking Constitutional protection for the liberty interests and

fundamental rights of parents in Oklahoma custody cases.

This District Court’s Merits Decision and Merits Reconsideration failed to recognize the “fundamental”

nature of the parental rights of each parent in a custody action. Instead, this court concluded simply

that “The Court finds Plaintiff has failed to show cause for his failure timely to respond to defendants'

motion to dismiss. For this reason, pursuant to Local Rule7.1(f), the motion to dismiss is hereby deemed

confessed. The Court will consider it accordingly” ORDER Dated June 20, 2005.

Having been so willing to dismiss Plaintiff's claim this court has erred in addressing the original intent

of Plaintiff's action which is the Constitutional question of family court in the state of Oklahoma. First

each fit parent in a custody action is vested with “fundamental” parental rights. Because this Court did

not recognize “fundamental” parental rights, the Court should not simply dismiss Plaintiff's claim on a

mere technical flaw when there is contention as to the service of process from the state. Just because the

state says that it was sent doesn't make it true. The court should allow the suit to proceed and thereby

apply the strict scrutiny standard of review to the Oklahoma scheme to determine if it is constitutionally

permissible.

In dismissing the claim, the Court not only ignored the fact that both the United States Supreme Court in

Troxel and the Sixth Circuit in Popovich a mountain of other courts have recognized that divorce and

custody actions implicate a parent’s “fundamental” rights, but also the fact that the State of Oklahoma
(acting as de facto defendant) has conceded the same point in this case. Troxel v. Granville, 530 U.S. 57

(2000); Popovich v. Cuyahoga County Court of Common Pleas, Domestic Relations Division, 276 F.3d

808, ___ (6th Cir. 2002) en banc cert. denied ____; .

Appellant does not say the state cannot apportion the parental rights as between the parents, but he does

challenge the Statutes in pari materia with judicial decisions (or opinions, if you will) and procedure as

legally insufficient as a matter of constitutional law. The issue is not so much what Oklahoma family

law in pari materia with judicial opinion does, but when and how it does it:

in an ex parte proceeding, before any hearing on the merits, on the basis of only affidavit evidence

considered by the state court without either confrontation or cross- examination of witnesses,

with the post-deprivation remedies requiring an evidentiary hearing without a clear standard for

regaining the rights already lost.

For any reasonable jurist who is respectful of due process and equal protection, the ex parte aspect of the

procedure alone should signal alarms, but most especially because, for the parent who loses the race to

the courthouse, the process directly implicates and alters the fundamental liberty interest of the parent in

the care, custody, and control of the child(ren).

In precisely the type of situation that is presented by the Oklahoma scheme, the U.S. Supreme Court has

overruled "short term orders, capable of repetition, yet evading review" that otherwise may forever

defeat re-dressability. Southern Pacific Terminal Co. v. Interstate Commerce Comm'n , 219 U.S. 498,

515 (1911).[3]

Plaintiff contends that each parent possesses “fundamental liberty interests” and “basic civil rights”

which can only be modified, altered, or infringed by the application of specific Fourteenth

Amendment protections, including notice and evidentiary hearing with clear and not arbitrary

standards.

The way Oklahoma Law in pari materia with Judicial opinion operates, every Oklahoma custody action

implicates fundamental parental rights because the scheme commands custodial and noncustodial

designations. When an Oklahoma court makes these legal conclusions without parental wrongdoing, it

is an alteration (if not an abrogation) of the fundamental nature of the rights. Changing one parent’s
status and designation to “custodial” and another to “non custodial” is an “abridgement” of the

“fundamental” and “basic civil right” for the parent designated “non-custodial.”

STANDARD OF REVIEW

The State of Oklahoma, recognizes the legal requirement for strict scrutiny of state actions which

implicate “fundamental” rights. Strict scrutiny is the proper standard of review in this and every case in

which fundamental rights are implicated by state action.

“[S]trict… scrutiny… [is] appropriate in reviewing legislative judgments that interfere with fundamental

constitutional rights… [S]trict scrutiny means that the State's system is not entitled to the usual

presumption of validity, that the State rather than the complainants must carry a heavy burden of

justification, that the State must demonstrate that its [system affecting fundamental liberties] has

been structured with precision, and is tailored narrowly to serve legitimate objectives and that it

has selected the "least drastic means for effectuating its objectives...” (footnotes and quotes omitted)

San Antonio School District v. Rodriguez, 411 U.S. 1, 16-17 (1973).

ARGUMENT

I. The Court erred as a matter of law and thereby abused its discretion by failing to hold that, as

between parents who are both “fit”, each parent is vested with a liberty interest in “fundamental”

parental rights.

A. Fundamental Rights

“In determining which rights are fundamental, Judges are not left at large to decide cases in light of their

personal and private notions[;]… it cannot be said that a Judge's responsibility to determine whether a

right is basic and fundamental in this sense vests him with unrestricted personal discretion.” Griswold

v. Connecticut, 381 U.S. 479, 493 n7 (1965) (A case dealing with marriage relationship privacy); [4]

Troxel v. Granville, 530 U.S. 57, 65, 66 (2000) (The liberty interest at issue in this case--the interest of

parents in the care, custody, and control of their children--is perhaps the oldest of the fundamental

liberty interests recognized by this Court... [I]t cannot now be doubted that the Due Process Clause of

the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the
care, custody, and control of their children.) After this sweeping declaration, supported by substantial

legal authority, the Troxel Court then goes on to apply the “history and traditions” test.

Citing Lassiter v. Department of Social Servs., 452 U.S. 18, 27 (1981), the court stated that “… in

analyzing the safeguards needed in child custody proceedings”, the Due Process Clause requires a

balancing of "the private interests at stake, the government's interest, and the risk that the procedures

used will lead to erroneous decisions." It is substantive due process jurisprudence, which protects

“fundamental liberty” interests, requires justice, accuracy, and the removal of arbitrary [6] decision-

making that minimizes the “risk” of procedures which “lead to erroneous decisions”:

In Lassiter, the Court said that… alteration of parental rights requires procedural safeguards under

the Due Process Clause in order to insure "… accuracy and [justice]…," and [to avoid a parent

being]… “erroneously deprived of his or her child."

The Court improperly ignored the procedural due process requirements of Hooks v. Hooks, 771 F. 2d.

935 (6th Cir. 1985). The fundamental nature of parental rights does not go away in the context of a

custody adjudication.

The U.S. Supreme Court has rejected the notion that a single parent (a father) does not have the same

constitutional rights under the Fourteenth Amendment, as "other parent[s]". Stanley v. Illinois, 405 U.S.

645, 647 (1972). The Court noted the State’s assertion that Stanley did not have the same Fourteenth

Amendment protections as “other parent[s]” [7] and then compared Stanley's rights to those of "other

parents". The conclusion of the case demonstrates that Stanley, as a single father, had a fundamental

liberty interest analogous to "other parent[s]". The Stanley Court continues:

“[A]s a matter of due process of law, Stanley was entitled to a hearing on his fitness as a parent before

his children were taken from him and that, by denying him a hearing and extending it to all other

parents whose custody of their children is challenged, the State denied Stanley the equal

protection of the laws guaranteed by the Fourteenth Amendment.” Stanley at 649.

Justice Kennedy recently noted that there is at least general, if not unanimous, agreement that parental

rights are protected by the Fourteenth Amendment:


“[T]here is a beginning point that commands general, perhaps unanimous, agreement in our separate

opinions: As our case law has developed, the [parent] has a constitutional right to determine, without

undue interference by the state, how best to raise, nurture, and educate the child. The parental right

stems from the liberty protected by the Due Process Clause of the Fourteenth Amendment. (citations

omitted).” Troxel v. Granville, 530 U.S. 57 (2000) (Kennedy, dissent)

Justice Kennedy then notes the problems with State Court custody proceedings:

“These [issues] include ... the protection the Constitution gives parents against state-ordered visitation

but also the extent to which federal rules for facial challenges to statutes control in state courts. These

matters, however, should await some further case…”

“It must be recognized, of course, that a domestic relations proceeding in and of itself can constitute

state intervention that is so disruptive of the parent-child relationship that the constitutional right of a

[parent] to make certain basic determinations for the child's welfare becomes implicated. The best

interests of the child standard has at times been criticized as indeterminate, leading to unpredictable

results. See, e.g., American Law Institute, Principles of the Law of Family Dissolution 2, and n. 2

(Tentative Draft No. 3, Mar. 20, 1998)… Our system must confront… the reality that litigation can

itself be so disruptive that constitutional protection may be required; and I do not discount the possibility

that in some instances the best interests of the child standard may provide insufficient protection to the

parent-child relationship.” Troxel 530 U.S. at 101.

The general consensus of the U.S. Supreme Court that parental rights are Fourteenth Amendment

protected liberty interests is addressed below by the nine Justices from Troxel, id:

O'Connor, Rehnquist, Ginsburg, and Breyer (plurality)

The liberty interest at issue in this case -- the interest of parents in the care, custody, and control of their

children -- is perhaps the oldest of the fundamental liberty interests recognized by this Court.

(Citations omitted).

Souter (concurring)

I concur in the judgment affirming the decision of the Supreme Court of Washington, whose facial

invalidation of its own state statute is consistent with this Court's prior cases addressing the substantive
interests at stake… We have long recognized that a parent's interests in the nurture, upbringing,

companionship, care, and custody of children are generally protected by the Due Process Clause of

the Fourteenth Amendment. (Citations omitted).

Thomas (concurring)

I agree with the plurality that this Court's recognition of a fundamental right of parents to direct the

upbringing of their children resolves this case. Our decision in Pierce v. Society of Sisters, 268 U. S.

510 (1925), holds that parents have a fundamental constitutional right to rear their children, including

the right to determine who shall educate and socialize them.

Stevens (dissenting)

It has become standard practice in our substantive due process jurisprudence to begin our analysis with

an identification of the "fundamental" liberty interests implicated by the challenged state action.

[We] are of course correct to recognize that the right of a parent to maintain a relationship with his or

her child is among the interests included most often in the constellation of liberties protected through the

Fourteenth Amendment. Our cases leave no doubt that parents have a fundamental liberty interest in

caring for and guiding their children, and a corresponding privacy interest--absent exceptional

circumstances--in doing so without the undue interference of strangers to them and to their child…

(Citations omitted). [8]

Scalia (dissenting)

In my view, a right of parents to direct the upbringing of their children is among the "unalienable

Rights" with which the Declaration of Independence proclaims "all Men ... are endowed by their

Creator." [9] And in my view that right is also among the "othe[r] [rights] retained by the people" which

the Ninth Amendment says the Constitution's enumeration of rights "shall not be construed to deny or

disparage."

The Court was presented with controlling legal authority, on the point that parental rights are a

“fundamental liberty” protected by the Fourteenth Amendment of the U.S. Constitution. Failing to

recognize the fundamental nature of the parental rights at stake, the Court simply dismisses the claim on

a technicality.
The District Court has improperly dismissed what Appellant suggests is the natural conclusion of due

process and equal protection being properly applied to fundamental liberty interests with fit parents --

with proper protection of their rights, shared or joint custody would be naturally follow.

Parents have a fundamental right… with which… the State may not interfere unless it proves by clear

and convincing evidence that the exercise of that right harms his/her child(ren) or at least creates a

substantial risk of such harm… This claim is that any parent of either gender relegated to non-custodial

status by an ‘allocation’ of parental rights has been thereby deprived of a fundamental right which

should be protected by the United States Constitution.

Plaintiff rightly asserts that because parental rights are fundamental, the Court should not indulge the

usual presumption of constitutionality for state statutes; rather, the statute should be subject to strict

scrutiny and the State should be required to show that any infringement it makes on the parental right is

justified by a compelling state interest and narrowly tailored.

Oklahoma's law does exactly what was prohibited by the U.S. Supreme Court in Stanley, id. It allows

the first party to the courthouse the opportunity to seize the fundamental liberty interests of the other

parent without an(y) opportunity to first rebut any evidence or claims against them. The State of

Oklahoma likely concedes that it is pitting two individuals with equal fundamental rights against each

other.

Here we have the U.S. Supreme Court, the Tenth Circuit Court of Appeals, Plaintiff Chapman,

thousands of Oklahoma parents and the State of Oklahoma in agreement that parental rights are

“fundamental” in nature; however, the Courts refuse to apply strict scrutiny to the Oklahoma scheme.

II. The Court erred as a matter of law and thereby abused its discretion by failing to apply the correct

standard of review, strict scrutiny, to state action which implicates liberty interests and fundamental

rights.

The nation’s history and traditions require the courts to draw definite lines around parental rights and to

remove arbitrary or vague perimeters. See Moore v. City of East Cleveland, 431 U.S. 494, 503

(1977) (plurality) (“Appropriate limits on substantive due process come not from drawing arbitrary lines

but rather from careful ‘respect for the teachings of history [and] solid recognition of the basic values
that underlie our society…’ Our decisions establish that the Constitution protects the sanctity of the

family precisely because the institution of the family is firmly rooted in this Nation’s history and

tradition.” (citations and footnotes omitted)). "The history and culture of Western civilization reflect a

strong tradition of parental concern for the nurture and upbringing of their children. This primary role of

the parents in the upbringing of their children is now established beyond debate as an enduring

American tradition." Wisconsin v. Yoder, 406 U. S. 205, 232 (1972); Parham v. J. R., 442 U.S. 584,

602 (1979) (Our jurisprudence historically has reflected Western civilization concepts of…

family… with broad parental authority over minor children. Our cases have consistently followed that

course). Describing the due process evaluation in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), the

Supreme Court declared in Little v. Streater, 452 U.S. 1, 13 (1981) (unanimous):

The private interests implicated here are substantial. Apart from the putative father's pecuniary interest

in avoiding a substantial support obligation and liberty interest threatened by the possible sanctions for

noncompliance, at issue is the creation of a parent-child relationship. This Court frequently has

stressed the importance of familial bonds, whether or not legitimized by marriage, and accorded

them constitutional protection. Just as the termination of such bonds demands procedural fairness, so

too does their imposition. (citations omitted)

A. Due Process Requirements

“[W]hat procedures due process may require under any given set of circumstances must begin with a

determination of the precise nature of the government function involved as well as of the private

interest that has been affected by governmental action.” Stanley v. Illinois, 405 U.S. 645, 650-651

(1972). Procedural due process issues require a two-step analysis: (1) whether there is a constitutionally

protected interest and (2) what process is required to protect the interest. Jackson v. City of Columbus,

194 F.3d 737, 745, 749 (6th Cir., 1999).[11] Consistent with Tenth Circuit authority, there is a parallel

U.S. Supreme Court decision in Ingraham v. Wright, 430 U.S. 651 (1977) (a case challenging the

constitutionality of a civil statute on Eighth and Fourteenth Amendment Grounds), requiring the

“familiar two-stage analysis”;


“We must first ask whether the asserted individual interest[s] are encompassed within the Fourteenth

Amendment's protection of "life, liberty or property"; if protected interests are implicated, we then must

decide what procedures constitute "due process of law." (citations omitted) Id. at 672.

Then “consideration of three distinct factors”:

"First, the private interest that will be affected…; second, the risk of an erroneous deprivation of such

interest…and the probable value, if any, of additional or substitute procedural safeguards; and finally,

the [state] interest, including the function involved and the fiscal and administrative burdens that the

additional or substitute procedural requirement would entail." (citations omitted) Id. at 675. [12]

The Due Process clause is directed specifically at the states themselves, imposing restrictions upon

Ohio’s power to deprive liberty or property. These restrictions are designed to provide a reasonable

assurance of accurate fact-finding. ''The function of a standard of proof, as that concept is embodied in

the Due Process Clause and in the realm of fact finding, is to 'instruct the fact finder concerning the

degree of confidence our society thinks he should have in the correctness of factual conclusions for a

particular type of adjudication.''' Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting In re Winship,

397 U.S. 358, 370 (1970) (Harlan concurring)). See also Weinberger v. Wiesenfeld, 420 U.S. 636, 652

(1975) (nem. con. – no dissents) (“[A] father, no less than a mother, has a constitutionally protected

right to the ‘companionship, care, custody, and management’ of ‘the children he has sired and raised,

[which] undeniably warrants deference and, absent a powerful countervailing interest, protection’”

citing from Stanley v. Illinois, 405 U.S. 645, 651 (1972)). “The ‘right to be heard before being

condemned to suffer grievous loss of any kind, even though it may not involve… criminal

conviction, is a principle basic to our society.’” Paul v. Davis, 424 U.S. 693, 708 (1976); Mathews v.

Eldridge, 424 U.S. 319, 333 (1976); Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).

1. Rule 75(N) and the problem with ex parte (pendent lite) proceedings

Parental rights possess substantive due process requirements and associational privacy rights. These

same parental rights are also a source of procedural due process protections. [13] Hooks v Hooks, 771

F.2d 935 (6th Cir., 1985) ([A]ny deprivation of a parent’s liberty interest in the custody of their children

must be accomplished by the requirements of due process.


This procedural “first strike” rule can so completely disadvantage the excluded party that they may

never be able to sufficiently recover, financially, emotionally, or otherwise, to maintain a sufficient

defense later. A post-deprivation remedy is insufficient where the litigant’s “footing” to challenge the

initial action is disadvantaged. Cf. Logan v. Zimmerman, 455 U.S. 422, 436-37 (1982).

The Supreme Court addressed a similar situation to Oklahoma law in Armstrong v. Manzo, 380 U.S.

545, 550 (1965) (per curiam), after holding that in an uncontested judicial proceeding, the failure to give

a parent notice of trial implicates the parent’s fundamental rights and deprives the parent of due process,

so as to render the judicial action constitutionally invalid. The Court then turned to whether or not a

post-judgment hearing to set aside the constitutionally invalid decree served to cure its constitutional

invalidity, Armstrong v. Manzo, 380 U.S. 545, 550, by noting that: “…[t]he Texas Court of Civil

Appeals … held, in accord with its understanding of the Texas precedents, that whatever constitutional

infirmity resulted from the failure to give the petitioner notice had been cured by the hearing

subsequently afforded to him upon his motion to set aside the decree.” The Supreme Court did not

agree, holding that when a defendant has been denied procedural due process resulting in a

constitutionally defective judgment, a post-judgment hearing will not cure the constitutionally defective

judgment. The reasoning of the Supreme Court, in Armstrong v. Manzo, 380 U.S. 545, 551-553, is as

follows:

Had the petitioner been given the timely notice which the Constitution requires, the Manzos, as the

moving parties, would have had the burden of proving their case as against whatever defenses the

petitioner might have interposed. It would have been incumbent upon them to show not only that

Salvatore Manzo met all the requisites of an adoptive parent under Texas law, but also to prove why the

petitioner's consent to the adoption was not required. Had neither side offered any evidence, those who

initiated the adoption proceedings could not have prevailed.

Instead, the petitioner was faced on his first appearance in the courtroom with the task of overcoming an

adverse decree entered by one judge, based upon a finding of nonsupport made by another judge. As the

record shows, there was placed upon the petitioner the burden of affirmatively showing that he had

contributed to the support of his daughter to the limit of his financial ability over the period involved.
The burdens thus placed upon the petitioner were real, not purely theoretical. For "it is plain that where

the burden of proof lies may be decisive of the outcome." Yet these burdens would not have been

imposed upon him had he been given timely notice in accord with the Constitution.

A fundamental requirement of due process is "the opportunity to be heard." It is an opportunity which

must be granted at a meaningful time and in a meaningful manner. The trial court could have fully

accorded this right to the petitioner only by granting his motion to set aside the decree and consider the

case anew. Only that would have wiped the slate clean. Only that would have restored the petitioner to

the position he would have occupied had due process of law been accorded to him in the first place. His

motion should have been granted. (citations omitted)

The Supreme Court emphasizes the consequences where required due process procedure is denied. In

Goldberg v. Kelly, 397 U.S. 254, 260 (1970), due process required an oral pre-deprivation hearing in a

welfare benefits matter (property deprivation), holding that some property rights require immediate

protection:

“[A] recipient… not permitted to present evidence… orally, or to confront or cross-examine adverse

witnesses [creates omissions that] are fatal to the constitutional adequacy of the procedures.”

Goldberg, at 268.

Title 43 under Oklahoma statute is used to justify uprooting an ex parte litigant from family, children,

home, income, and personal property in the home. Oklahoma law does not so necessarily require that

any allegation of danger or harm be present. If it did, it would be insufficient when considering the

recent U.S. Supreme Court decision in Crawford v. Washington, No. 02-9410 (2004) (all concurring) in

a case of a wife’s hearsay testimony against her husband, the U.S. Supreme Court overruled Ohio v.

Roberts, 448 U.S. 56 (1980). [14] In Crawford, the Supreme Court upheld the confrontation clause and

its historical background of the “right…to be confronted with the witnesses against him” (citations

omitted).

Crawford v. Washington denies the state’s claim to accept hearsay or ex parte proceedings, i.e., “without

oral hearing” and “upon satisfactory proof by affidavit” (Rule 75(N)). Much of the Crawford decision

described the history of the repeated, persistent, and consistent abuses which occur when “trial by
affidavit” is allowed. Crawford v. Washington noted that due process does require an oral hearing and

affirms Plaintiff’s contention that Oklahoma law is facially unconstitutional as written. Post

adjudication remedies are insufficient to remedy the initial deprivation under these laws, just to regain

the implicated rights. The litigant to win the race to the courthouse generally obtains all of the rights

and property, where the opposing party is subject to a different standard just to reclaim what has already

been taken away without their knowledge.

For criminal defendants the Due Process Clause has been interpreted to provide that "an accused has a

right to be present at all stages of the trial where his absence might frustrate the fairness of the

proceedings." Faretta v. California, 422 U.S. 806, 819 n.15 (1975). Parties in civil litigation have an

analogous due process right to be present in the courtroom and to meaningfully participate in the

process unless their exclusion furthers important governmental interests.[15] Further, those who fail to

appear in court may not be sanctioned for failing to appear until they have been accorded due process.

Groppi v. Leslie, 404 U.S. 496, 502 (1972). These guarantees are protective of equal justice and fair

treatment before the courts. U.S. v. Tennessee, No. 98-6730, 2003 FED App.

"It is well settled that, quite apart from the guarantee of equal protection, if a law impinges upon a

fundamental right explicitly or implicitly secured by the Constitution [it] is presumptively

unconstitutional." Harris v. McRae, 448 U.S. 297, 312 (1980); Zablocki v. Redhail, 434 U.S. 374, 388

(1978) (“When a statutory classification significantly interferes with the exercise of a fundamental right,

it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored

to effectuate only those interests.”).

2. Equal Protection

In the unique situation of divorcing parents, pitting two individuals with equal fundamental rights

against each other, it is unconstitutional for the state to break the tie by allocating custody.

The foundational Fourteenth Amendment case, Ex parte Virginia, 100 U. S. 339 (1880) (unanimous),

was decided contemporaneously with the passage of the Fourteenth Amendment and the Civil Rights

acts 1 and 2 (i.e. 42 U.S.C.§ 1981 et. seq.). This case speaks to the interplay between the Equality and

Due Process provisions of the Fourteenth Amendment:


The Fourteenth Amendment is “to secure to all persons the enjoyment of perfect equality of civil

rights and the equal protection of the laws against State denial or invasion… The prohibitions of the

Fourteenth Amendment are directed to the States, and they are to a degree restrictions of State power…

[A] State cannot disregard the limitations which the Federal Constitution has applied to [state] power.

[State] rights do not reach to that extent... [P]rohibitions of the Fourteenth Amendment are addressed to

the States.” Id. at 346.

“A State acts by its legislative, its executive, or its judicial authorities… The constitutional provision,

therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are

exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by

virtue of public position under a State government, deprives another of property, life, or liberty,

without due process of law, or denies or takes away the equal protection of the laws, violates the

constitutional inhibition… This must be so, or the constitutional prohibition has no meaning…

[T]he constitutional amendment was ordained for a purpose. It was to secure equal rights to all

persons, and, to insure to all persons the enjoyment of such rights.” Id. at 347.

“Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and

administered by public authority with an evil eye and an unequal hand, so as practically to make unjust

and illegal discriminations between persons in similar circumstances, material to their rights, the denial

of equal justice is still within the prohibition of the constitution.” Yick Wo v. Hopkins, 118 U.S. 356,

373-374 (1886) (unanimous). The guaranty of "equal protection of the laws is a pledge of the protection

of equal laws." Id. at 369. In Lehr v. Robertson, 463 U.S. 248, 265-266 (1983), the Supreme Court

addressed a parental rights challenge to adoption proceedings and noted:

The concept of equal justice under law requires the State to govern impartially. The sovereign may not

draw distinctions between individuals based solely on differences that are irrelevant to a legitimate

governmental objective... [I]t may not subject men and women to disparate treatment when there

is no substantial relation between the disparity and an important state purpose (citations omitted).

"...A citizen of the United States has a perfect constitutional right to… equality of rights with every

other citizen; and the whole power of the nation is pledged to sustain him in that right… enjoying all the
rights and privileges enjoyed by other citizens.” Saenz v. Roe, 526 U.S. 489 (1999). Between fit

parents, the only way the state of Oklahoma can support the breaking of equal fundamental rights,

without first providing them sufficient Fourteenth Amendment protections, is through the exercise of

personal value judges, biases, or prejudices. This violates constitutional protections:

“The question… is whether the reality of private biases and the possible injury they might inflict are

permissible considerations for removal of [a] child from the custody of its natural [parent]. We have

little difficulty concluding that they are not. The Constitution cannot control such prejudices but neither

can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or

indirectly, give them effect.” Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (unanimous).

“Maternal and paternal roles are not invariably different in importance.” Caban v. Mohammed, 441

U.S. 380, 381 (1979).

"[T]hough the will of the majority is in all cases to prevail, that will to be rightful must be reasonable;

that the minority possess their equal rights, which equal law must protect, and to violate would be

oppression." --Thomas Jefferson

3. Procedural and Substantive Due Process

“Hooks is a procedural due process case; it does not address the substantive rights of parents between

themselves in the divorce context. Without doubt, Hooks and the Supreme Court authority which it

cites do insist that procedural due process standards be observed when a parent is deprived of the

custody of his or her children.”

The District Court relies heavily upon two dissents from the recent Troxel decision to defeat the notion

that parents must be afforded significant Fourteenth Amendment protections in divorce and custody

actions. Rarely if ever, are sound decisions, affecting such pivotal components of any legal contest,

based significantly upon two dissents from the same case.

Just as in the trial court did in Howard v. Grinage, No. 94-2234, 1996 FED App. 0130P (6th

Cir.1996) [17] the District Court creatively applied criminal substantive standards, even though this case

clearly addresses “fundamental liberty interests, basic civil rights,” and “procedural due process”

protections.
The Due Process Clause has a procedural component and a substantive one. The two components are

distinct from each other because each has different objectives, and each imposes different constitutional

limitations on government power…

A procedural due process limitation, unlike its substantive counterpart, does not require that the

government refrain from making a substantive choice to infringe upon a person's life, liberty, or

property interest. It simply requires that the government provide "due process" before making such a

decision. The goal is to minimize the risk of substantive error, to assure fairness in the decision-

making process, and to assure that the individual affected has a participatory role in the process.

The touchstone of procedural due process is the fundamental requirement that an individual be given

the opportunity to be heard "in a meaningful manner." See Loudermill v. Cleveland Bd. of Educ., 721

F.2d 550, 563, aff'd , 470 U.S. 532 (1985)… [T]he right to a hearing prior to the deprivation is of

constitutional stature and does not depend upon the nature of the right violated. The rationale for

granting procedural protection to an interest that does not rise to the level of a fundamental right

lies at the very heart of our constitutional democracy: the prevention of arbitrary use of

government power.

Substantive due process… serves the goal of preventing "governmental power from being 'used

for purposes of oppression,'" regardless of the fairness of the procedures used. See Daniels v.

Williams, 474 U.S. 327, 331 (1986) (citation omitted). Substantive due process serves as a vehicle to

limit various aspects of potentially oppressive government action. For example, it can serve as a

check on legislative enactments thought to infringe on fundamental rights otherwise not explicitly

protected by the Bill of Rights; or as a check on official misconduct which infringes on a "fundamental

right”…

Procedural due process claims do not implicate the egregiousness of the action itself, but only question

whether the process accorded prior to the deprivation was constitutionally sufficient. And although the

existence of a "protected" right must be the threshold determination, the focus of the inquiry centers on

the process provided, rather than on the nature of the right . However, where the governmental

decision causing a deprivation is made without any process where one is required, the inquiry
shifts to the nature of the conduct causing the deprivation… [T]he failure to provide due process,

where the government is constitutionally required to do so, is in itself an arbitrary and unfair use

of official power.

In short, substantive due process prohibits the government's abuse of power or its use for the

purpose of oppression, and procedural due process prohibits arbitrary and unfair deprivations of

protected life, liberty, or property interests without procedural safeguards.

The doctrinal distinctions undergirding the limitations each component imposes partly explain the

different standards the Supreme Court has said are necessary to state a violation under each of the two

components of the Due Process Clause. Although both substantive and procedural due process

violations must "deprive" an individual of a protected constitutional interest, and the deprivation must

be "arbitrary in the constitutional sense," Collins v. City of Harker Heights, 503 U.S. 115, 129 (1992),

each imposes upon a plaintiff a different burden to state a cognizable claim.” Id.

B. Salerno Test for a Statutory Challenge

The test contained within United States v. Salerno, 481 U.S. 739 (1987) should control in relation to its

recognition of fundamental parental rights. A careful reading of Salerno in context, reaffirms the

Plaintiff’s point. In the beginning of Salerno, the Court appears frustrated by the extensive measures

enacted to comply with any test of the Fourteenth Amendment Due Process Clause when it stated

that a statute “might operate unconstitutionally under some conceivable set of circumstances is

insufficient to render it wholly invalid…”

(1) The case addressed a criminal bail bond matter.

(2) The Court engaged in a review three separate times of the considerable procedural due process

protections (Id. at 742-43, 747-48, 751-52) concluding, “We think these extensive safeguards suffice

to repel a facial challenge.”

(3) The “clear and convincing evidence” standard was applied. Id. at 742.

(4) The statutes in question did not provide “unbridled discretion” Id. at 742.
(5) The statute contained appropriate “compelling interests” Id. at 749. The statute under review was

narrowly tailored to the public interest and safety by applying only to those who posed a danger to

society.

(6) The statute was narrowly tailored to affect those interests Id. at 750 (“individuals who have been

arrested for a specific category of extremely serious offenses”).

Several U.S. Supreme Court decisions concur; these decisions support Chapman’s contentions of the

requisite Fourteenth Amendment requirements for parental rights. “[N]either Congress nor a State can

validate a law that denies the rights guaranteed by the Fourteenth Amendment.” Saenz v. Roe, 526 U. S.

489 (1999); Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 732-733 (1982). [18]

The Court did not properly begin its required review of the interests before the court, in compliance with

the standards set forth in widely accepted Fourteenth Amendment due process jurisprudence.

C. Whether “void for vagueness” or “arbitrary” in terms of a fundamental liberty there is little or no

difference.

The touchstone of due process is protection of the individual against arbitrary action of government.”

Dent v. West Virginia, 129 U.S. 114, 123 (1889) (unanimous). [20]

Federal Courts have struck down laws demonstrating vagueness in relation to parental termination

actions. Alsager v. District Court, 406 F.Supp. 10 (S.D. Iowa 1975), aff'd per curiam, 545 F.2d 1137

(8th Cir. 1976). Where parental termination was provided for under statutes that noted parents could be

found "...unfit by reason of conduct or condition seriously detrimental to the child..." the vagueness

doctrine was applied to determine they were unconstitutional. [21] A regulation which “either forbids or

requires the doing of an act in terms so vague that men of common intelligence must necessarily guess

at its meaning... violates the first essential of due process of law.” Connally v. General Constr. Co., 269

U.S. 385, 391 (1926) (nem. con.). [22] In Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626

(1985), the application of vagueness was asserted pursuant to an attorney in jeopardy of losing his

license, and not a criminal matter. “[P]erhaps the most important factor affecting the clarity that the

Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected

rights. If, for example, the law interferes with the right of free speech or of association, a more stringent
vagueness test should apply.” Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 499 (1982)

(nem. con.)

III. It is axiomatic in law that a “right without a remedy is no right at all” and that “where one is

assailed, there he may defend.” Henry Campbell Black, American Constitutional Law §70 (4th Ed.,

West Pub. 1927) (A right without a remedy is no right at all, and a constitution without a competent

judicial arbiter of what lies fair and foul under its strictures is no constitution at all). Not long after the

enactment of the Fourteenth Amendment, the U.S. Supreme Court noted the concept that a right requires

a remedy is at the very heart and foundation of American Jurisprudence (Hovey v. Elliott, 167 U.S.

409, 414 - 416 (1897) (unanimous):

“The principle… lies at the foundation of all well-ordered systems of jurisprudence. Wherever one is

assailed in his person or his property, there he may defend, for the liability and the right are inseparable.

This is a principle of natural justice, recognized as such by the common intelligence and conscience of

all nations. A sentence of a court pronounced against a party without hearing him, or giving him an

opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any

other tribunal.” Id. at 414

“Can it be doubted that due process of law signifies a right to be heard in one's defense? If the

legislative department of the government were to enact a statute conferring the right to condemn the

citizen without any opportunity whatever of being heard, would it be pretended that such an enactment

would not be violative of the constitution? If this be true, as it undoubtedly is, how can it be said that

the judicial department-the source and fountain of justice itself-has yet the authority to render lawful

that which, if done under express legislative sanction, would be violative of the constitution. If such

power obtains, then the judicial department of the government, sitting to uphold and enforce the

constitution, is the only one possessing a power to disregard it. If such authority exists, then, in

consequence of their establishment, to compel obedience to law, and to enforce justice, courts possess

the right to inflict the very wrongs which they were created to prevent.” Id. at 416.

“The very essence of civil liberty… consists in the right of every individual to claim the protection of

the laws, whenever he receives an injury. One of the first duties of government is to afford that
protection… [E]very right, when withheld, must have remedy, and every injury its proper redress…

The government of the United States has been emphatically termed a government of laws, and not of

men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the

violation of a vested legal right.” Marbury v. Madison, 5 U.S. 137, 163 (1803).

In conjunction with this inherent principle of American jurisprudence, where fundamental liberty is

concerned, it is the state, and not the party to an action that bears the responsibility of proving their

infringements are constitutional. In this unique area of the law, the normal presumption of

constitutionality and of the burden to demonstrate constitutionality falls first to the state, that nature of

the case itself shifts. [23] “It is well settled that, quite apart from the guarantee of equal protection, if a

law ‘impinges upon a fundamental right explicitly or implicitly secured by the Constitution [it] is

presumptively unconstitutional.’” Harris v. McRae, 448 U.S. 297, 312 (1980). “Fundamental liberty”

and “basic civil rights” fall into that special category of substantive due process where "governmental

deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the

procedures employed” (citation omitted) Pearson v. City of Grand Blanc, 961 F.2d 1211, 1216 (6th Cir.

1992); Zablocki v. Radhail, 434 U.S. 374, 388 (1978) (When a statutory classification significantly

interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by

sufficiently important state interests and is closely tailored to effectuate only those interests.)

Once an injury is demonstrated, that affects “fundamental” and “basic” rights is shown to have its

origins in a statutory construction, the state must then, as a matter of law, demonstrate that its statutes

are properly constructed pursuant to the test outlined in both Zablocki and Salerno.

A. Additional remedies

1. The lack of Due Process injures rights which are remedied by removing the source of the ongoing

injury.

The Court erred in not considering that the lack of due process creates a justiciable injury with real

avenues of redress.

As the court held in Daniels v. Williams, 474 U.S. 327 (1986) “[t]he Due Process Clause was intended

to secure an individual from an abuse of power by government officials.” See also, Collins v.
Harker Heights, 503 U.S. 115, 126 (1992) (noting that the Due Process Clause was intended to prevent

government officials " 'from abusing [their] power, or employing it as an instrument of oppression'").

[24]Fundamental rights are substantive rights and must be free of "arbitrary and capricious" action

by the government itself or its actors. Darrah v. City of Oak Park, 255 F.3d 301, 306 (6th Cir.,

2001) ("[T]he due process guarantee… protect[s] citizens from the arbitrary exercise of…

power…") (citations omitted); County of Sacramento v. Lewis, 523 U.S. 833 (1998) (The "substantive

component of the Due Process Clause is violated by [government] action… when it [is] arbitrary

[25] ). In other words, the "arbitrary and capricious" standard set forth in Pearson is simply another

formulation of, but is no less stringent than, the more traditional "shocks the conscience" standard…

The State government’s freedom ''to regulate procedure of its courts in accordance with it own

conception of policy and fairness” are only valid so long as they do not “offend… some principle of

justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'' Snyder

v. Massachusetts, 291 U.S. 97, 105 (1934). [26] Substantive due process affords only those protections

so rooted in the traditions and conscience of our people as to be ranked as fundamental.

This legal authority establishes that some of the re-dressable injuries created by a lack of due process are

to “secure an individual from abuse of power…,” prevent offending “some principle of justice,” and to

remove an “instrument of oppression.” The Tenth Circuit has found that due process is to prevent the

“arbitrary exercise of… power,” and “arbitrary and capricious action.” Therefore, striking down

Oklahoma's provisions which lack due process redresses the “abuse of power,” controls the “exercise

of… power,” prevents “arbitrary and capricious action,” and removes oppression--, all of which restore

the “principle of justice.”

This is real and tangible relief as a litigant would be secure from the many injuries caused by the lack of

due process. Preventing the State of Oklahoma from operating under statutory law which does not

contain the requisite constitutional protections for “fundamental liberty interests” and “basic civil rights”

provides prospective relief.

Plaintiff’s “due-process allegation does not implicate the merits of the [state court] decree, only the

procedures leading up to it.


The U.S. Supreme Court recently corrected a very narrow redressability interpretation by the Fourth

Circuit Court noting that the deterrent effects directed at the cause of the injury was a sufficient basis for

redress. Cf. Friends of the Earth v. Laidlaw Environmental, 528 U.S. 167 (2000). (“For a plaintiff who

is injured or threatened with injury due to illegal conduct ongoing at the time of suit, a sanction that

effectively abates that conduct and prevents its recurrence provides a form of redress. Civil

penalties can fit that description. Insofar as they encourage defendants to discontinue current violations

and deter future ones, they afford redress to citizen plaintiffs injured or threatened with injury as a result

of ongoing unlawful conduct.”) Id.

In this case, the cause of the injury had been so permanently removed as to be utterly impossible to be

re-created. However, Oklahoma still continues to this day to operate its oppressive procedures under the

laws and within their courts and continues applying a different standard during post deprivation

proceedings to regain the rights that were taken without any notice or opportunity to be heard under that

same law. Should this Court find Oklahoma’s statutory scheme to be unconstitutional, jointly or

severally, and should the State of Oklahoma continue with the application of unconstitutional law

unabated, then various remedies, including contempt actions and injunctions, may be sought “to

discontinue current violations and deter future ones…”

A favorable decision by the court declaring the statutes in this case inconsistent with Fourteenth

Amendment requirements, and then enjoining the statutory operation, provides the ability to ask the

state (and not the federal courts) to reconsider its own initial order, and any post adjudication

adjustments to that reconsidered order, under constitutionally compliant Fourteenth Amendment

requirements.

This provides true redress to be able to demand that the state operate under laws and procedures that are

not “arbitrary, abusive, oppressive, or capricious” while providing for the requisite “accuracy,” “equity

and justice” contained in the Fourteenth Amendment to the U.S. Constitution. In fact, freedom from

abuse and oppression is so compelling that the Revolutionary War, the Declaration of Independence, the

Thirteenth Amendment, the Fourteenth Amendment, and other significant historical and constitutional

milestones have occurred to redress various forms of oppression in America. Requiring the State of
Oklahoma to afford its citizens the protections of the U.S. Constitution, through Fourteenth

Amendment Due Process, is compelled by the Supremacy Clause and the Fourteenth Amendment.

CONCLUSION

Parental rights have been described in the strongest constitutional terms of any rights in our Nation’s

jurisprudence. They have been repeatedly deemed to be “natural, essential, fundamental, vital,

inalienable, and basic.” This certainly does not encompass the universe of legal descriptions that various

courts have offered in describing these important constitutional rights. The “careful description” of the

“liberty interest at issue” includes the fundamental rights to “care, custody, and control,” which are

implicated in every single Oklahoma custody action. There are no exceptions, whether it is the initial

pendent lite, ex parte deprivation under the law, the determination by a different evidentiary standard in

open court to regain the previously deprived liberty interest, and every post trial determination of an

adjustment to the original order under the law implicates the exact same liberty interests.

Oklahoma law in pari materia with judicial personal opinion (legislating from the bench) is flagrantly

unconstitutional on its face because it explicitly denies the right to an oral pre-deprivation hearing and

explicitly denies a constitutionally compliant evidentiary standard at the point of the constitutionally

protected right’s implication.

Perhaps most troubling from an Equal Protection, Equal Application, and Due Process standpoint is

the different legal standard applied to all post deprivation remedies. Where the initial action implicates

the fundamental liberty interest on the strength of nothing but an ex parte affidavit, the Court had a duty

to analyze the different standards applied to arbitrarily classified litigants at different stages in the

process, e.g., eEx parte rights deprivation upon the strength of an affidavit, and at a later evidentiary

hearing in open court to reclaim the seized right, being almost impossible.

Oklahoma law creates an injury which is obviously “capable of repetition, yet evades review”. Its

effects are immediate, irrevocable, destructive of liberty because, even if the excluded parent ultimately

prevails, the time in the “care, custody, and control” of the minor children is forever lost. This lost time

with the child(ren) can never be recovered, no matter what post-judgment remedial avenues are offered.
Plaintiff strongly urges the Court to review Plaintiff's concerns, declare Oklahoma family law in pari

materia with forcing personal opinion from the bench, facially unconstitutional as a violation of both the

Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States

Constitution.

The Court has frequently emphasized that parental rights are worthy of constitutional protections. The

rights…to raise one’s children have been deemed ‘essential’…‘basic civil rights of man’, Hodgson v.

Minnesota, 497 U.S. 417, 447 (1990); Weinberger v. Salfi, 422 U.S. 749, 771 (1975); Stanley v. Illinois,

405 U.S. 645, 651 (1972) ‘[T]he liberty…to direct the upbringing and education of children,’…are

among ‘the basic civil rights of man.’ (citations omitted)(Stevens concurring); Thornburgh v. American

Coll. Of Obst. & Gyn., 476 U.S. 747, 773 (1986); Griswold v. Connecticut, 381 U.S. 479, 503

(1965) [T]he rights of fatherhood and family were regarded as “essential” and “basic civil rights of

man” (Burger and Rehnquist dissent); Vlandis v. Kline, 412 U.S. 441, 461 (1973).

See Meyer v. Nebraska, 262 U.S. 390 (1923) and Pierce v. Society of Sisters, 268 U.S. 510, 535

(1925); Santosky v. Kramer, 455 U.S. 745, 748 (1982) ([F]undamental liberty interest of natural parents

in the care, custody and management of their child does not evaporate… because they have not been

model parents…); Troxel v. Granville, 530 U.S. 57 (2000)(The fundamental liberty interest at issue… is

perhaps the oldest of the liberty interests recognized by this Court… [I]t cannot now be doubted that the

Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make

decisions concerning the care, custody, and control of their children.

See Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Carroll v. Princess Anne, 393 U.S. 175, 178 -179

(1968); United States v. W. T. Grant Co., 345 U.S. 629, 632 -633 (1953).

"[C]ourts indulge every reasonable presumption against waiver" of fundamental constitutional rights.

Aetna Ins. Co. v. Kennedy ex rel. Bogash , 301 U. S. 389, 393 (1937); Johnson v. Zerbst, 304 U.S.458,

464 (1938); Hodges v. Easton, 106 U.S. 408, 412 , 1 S.Ct. 307 (1882). See also Ohio Bell Telephone

Co. v. Public Util. Comm'n of Ohio, 301 U. S.292, 307 (1937) (we "do not presume acquiescence in the

loss of fundamental rights").


If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any state...They

shall be fined under this title or imprisoned not more than ten years, or both...18 U.S.C. Civil Rights.

Finally, no one can lawfully act beyond the Supreme Law of the Land, judge or otherwise and the mere

contention of that point is in itself an unconstitutional act. No judge may act against the lawful rights of

a citizen of the United States, especially in a flagrant and brazen manner because of immunity. This

court is bound by Constitutional authority to hold the above parties responsible for their actions of

unlawful acts.

WHEREFORE, the undersigned Plaintiff, Raymond G. Chapman, individually, and also on behalf of all

persons similarly situated in this action (together, “the Class”), respectfully moves this Court grant

Plaintiff's Motion for Reconsideration for all reasons set forth herein, to hold responsible (and rightfully

so) the transgressors of the state laws and the Constitutions of the state of Oklahoma and the United

States as described herein, to address and remedy the unconstitutional acts performed daily within the

Oklahoma courts in order to set the future course of the proceedings accordingly for the innocent

citizens of the state of Oklahoma and for all other relief that is just and proper under the premises.

Respectfully Submitted,

__________________________

Raymond G. Chapman

INTRODUCTION

1) The Constitution

Article III

Section 1. The judicial power of the United States shall be vested in one Supreme Court and in such

inferior courts as the Congress may from time to time ordain and establish. The judges, both of the
supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times,

receive for their services, a compensation, which shall not be diminished during their continuance in

office.

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in

the state where the said crimes shall have been committed; but when not committed within any state, the

trial shall be at such place or places as the Congress may by law have directed.

2) The Bill of Rights:

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others

retained by the people.

3) Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people.

4) Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to

assemble, and to petition the Government for a redress of grievances.

5) Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall have been committed, which district shall have been

previously ascertained by law, and to be informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his defense.


6) 3SUPREMACY CLAUSE - "This Constitution, and the Laws of the United States which shall be

made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of

the United States, shall be the supreme Law of the Land; and the Judges in every State shall be

bound thereby, any thing in the Constitution or Laws of any State to the contrary notwithstanding." U.S.

Const. art. VI, Paragraph 2." Stone v. City and County of San Francisco, 968 F.2d 850, 862 (9th Cir.

1992), cert. denied, 113 S. Ct. 1050 (1993).

7) 4A voidable order is an order that must be declared void by a judge to be void; a void order is an

order issued without jurisdiction by a judge and is void ab initio and does not have to be declared void

by a judge to be void. Only an inspection of the record of the case showing that the judge was without

jurisdiction or violated a person’s due process rights, or where fraud was involved in the attempted

procurement of jurisdiction, is sufficient for an order to be void. Potenz Corp. v. Petrozzini, 170 Ill.

App. 3d 617, 525 N.E. 2d 173, 175 (1988). In instances herein, the law has stated that the orders are

void ab initio and not voidable because they are already void.

8) 5In its order granting all Petitioners motions and denying all Respondents motions the district court

begins its analysis by setting forth the elements of a § 1983 claim against an individual state actor as

follows:

(1) Chapman possessed a constitutional right of which he was deprived;

(2) the acts or omissions of the court were intentional;

(3) the judge of the court acted under color of law; and

(4) the acts or omissions of the court caused the constitutional deprivation.

Estate of Macias v. Lopez, 42 F. Supp.2d 957, 962 (N.D. Cal. 1999) (emphasis added). The court also

stated that, to establish municipal liability, a plaintiff must show that :

(1) Chapman possessed a constitutional right of which he was deprived;

(2) The municipality had a policy or custom;


(3) This policy or custom amounts to deliberate indifference to Chapman’s constitutional right; and;

(4) The policy or custom caused the constitutional deprivation.

9) REQUEST FOR A FORMAL INQUEST

Impeachment is a matter of incomparable gravity. Even to discuss it is to discuss overturning the

electoral will of the people. For this reason, the Framers made clear, and scholars have long agreed, that

the power should be exercised only in the event of such grave harms to the state as "serious assaults on

the integrity of the processes of government." Charles L. Black, Impeachment: A Handbook 38-39

(1974).

(1) Did the Judge commit perjury;

(2) Did the Judge obstruct justice;

(3) Did the Judge tamper with witnesses; and

(4) Did the Judge abuse the power of his office..

10) Title 42 USC Section 1983 Laws: Cases and Codes :

U.S. Code: Title 42 : Section 1983

Sec. 1983. - Civil action for deprivation of rights Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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,

except that in any action brought against a judicial officer for an act or omission taken in such officer's

judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or

declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable

exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Oklahoma is an inseparable part of the United States of America, and the United States Constitution is

the supreme law of the land.


A. The right of the people peaceably to assemble.

B. To petition the Government for a redress of grievances.

C. The right of the people to keep and bear Arms shall not be infringed.

D. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures.

E. No person shall be held to answer for a capital, or otherwise infamous crime.

F. No one has to witness against himself, nor be deprived of life, liberty, or property, without due

process of law.

G. Private property be taken for public use, without just compensation.

H. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an

impartial jury.

I. Informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to

have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for

his defense.

J. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial

by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the

United States, than according to the rules of the common law.

K. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments

inflicted.

L. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage

others retained by the people.

M. The Judicial power of the United States shall not be construed to extend to any suit in law or

equity, commenced or prosecuted against one of the United States by Citizens of another State,

or by Citizens or Subjects of any Foreign State.

N. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall

have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
O. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

P. The right of citizens of the United States to vote shall not be denied or abridged by the United States

or by any State on account of race, color, or previous condition of servitude- over the age of 18 or

because of gender.

Q. The Congress shall have power to lay and collect taxes on incomes, from whatever source derived,

without apportionment among the several States, and without regard to any census or enumeration.

11) Title 18, U.S.C., Section 241

Conspiracy Against Rights

I. Laws: Cases and Codes: U.S. Code: Title 18: Section 241

This statute makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or

intimidate any person of any state, territory or district in the free exercise or enjoyment of any right or

privilege secured to him/her by the Constitution or the laws of the United States, (or because of his/her

having exercised the same).

It further makes it unlawful for two or more persons to go in disguise on the highway or on the premises

of another with the intent to prevent or hinder his/her free exercise or enjoyment of any rights so

secured.

Punishment varies from a fine or imprisonment of up to ten years, or both; and if death results, or if such

acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit

aggravated sexual abuse, or an attempt to kill, shall be fined under this title or imprisoned for any term

of years, or for life, or may be sentenced to death.

12) Title 18, U.S.C., Section 242

Deprivation of Rights Under Color of Law

Laws: Cases and Codes: U.S. Code: Title 18: Section 242
This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or

custom to willfully deprive or cause to be deprived from any person those rights, privileges, or

immunities secured or protected by the Constitution and laws of the U.S.

This law further prohibits a person acting under color of law, statute, ordinance, regulation or custom to

willfully subject or cause to be subjected any person to different punishments, pains, or penalties, than

those prescribed for punishment of citizens on account of such person being an alien or by reason of

his/her color or race.

Acts under "color of any law" include acts not only done by federal, state, or local officials within the

bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their

lawful authority; provided that, in order for unlawful acts of any official to be done under "color of any

law," the unlawful acts must be done while such official is purporting or pretending to act in the

performance of his/her official duties. This definition includes, in addition to law enforcement officials,

individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security Guards, etc.,

persons who are bound by laws, statutes ordinances, or customs.

Punishment varies from a fine or imprisonment of up to one year, or both, and if bodily injury results or

if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire

shall be fined or imprisoned up to ten years or both, and if death results, or if such acts include

kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual

abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life,

or both, or may be sentenced to death.

13) Title 18, U.S.C., Section 245 Federally Protected Activities Laws: Cases and Codes : U.S. Code :

Title 18 : Section 245

1) This statute prohibits willful injury, intimidation, or interference, or attempt to do so, by force or

threat of force of any person or class of persons because of their activity as:

a) A voter or person qualifying to vote...;


b) A participant in any benefit, service, privilege, program, facility, or activity provided or administered

by the United States;

c) An applicant for federal employment or an employee by the federal government;

d) A juror or prospective juror in federal court; and

e) A participant in any program or activity receiving Federal financial assistance.

2) Prohibits willful injury, intimidation, or interference or attempt to do so, by force or threat of force of

any person because of race, color, religion, or national origin and because of his/her activity as:

a) A student or applicant for admission to any public school or public College;

b) A participant in any benefit, service, privilege, program, facility, or activity provided or administered

by a state or local government;

c) An applicant for private or state employment, private or state employee; a member or applicant for

membership in any labor organization or hiring hall; or an applicant for employment through any

employment agency, labor organization or hiring hall;

d) A juror or prospective juror in state court;

e) A traveler or user of any facility of interstate commerce or common carrier; or

f) A patron of any public accommodation, including hotels, motels, restaurants, lunchrooms, bars, gas

stations, theaters...or any other establishment which serves the public and which is principally engaged

in selling food or beverages for consumption on the premises.

3) Prohibits interference by force or threat of force against any person because he/she is or has been, or

in order to intimidate such person or any other person or class of persons from participating or affording

others the opportunity or protection to so participate, or lawfully aiding or encouraging other persons to

participate in any of the benefits or activities listed in items (1) and (2), above without discrimination as

to race, color, religion, or national origin.

Punishment varies from a fine or imprisonment of up to one year, or both, and if bodily injury results or

if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire

shall be fined or imprisoned up to ten years or both, and if death results or if such acts include

kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual
abuse, or an attempt to kill, shall be subject to imprisonment for any term of years or for life or may be

sentenced to death.

14) Title 18, U.S.C., Section 1001 Fraud and False Statements United States Code

TITLE 18 - CRIMES AND CRIMINAL PROCEDURE

PART I - CRIMES

CHAPTER 47 - FRAUD AND FALSE STATEMENTS

U.S. Code as of: 01/02/01

Section1001. Statements or entries generally

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the

executive, legislative, or judicial branch of the Government of the United States, knowingly and

willfully -

(1) Falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) Makes any materially false, fictitious, or fraudulent statement or representation; or

(3) Makes or uses any false writing or document knowing the same to contain any materially false,

fictitious, or fraudulent statement or entry; shall be fined under this title or imprisoned not more than 5

years, or both.

15) 18 USC Sec. 1203 TITLE 18 - CRIMES AND CRIMINAL PROCEDURE

PART I - CRIMES

CHAPTER 55 - KIDNAPPING

Laws: Cases and Codes: U.S. Code: Title 18: Section 1203

STATUTE

(a) Except as provided in subsection (b) of this section, whoever, whether inside or outside the United

States, seizes or detains and threatens to kill, to injure, or to continue to detain another person in order to

compel a third person or a governmental organization to do or abstain from doing any act as an explicit
or implicit condition for the release of the person detained, or attempts or conspires to do so, shall be

punished by imprisonment for any term of years or for life and, if the death of any person results, shall

be punished by death or life imprisonment.

16) United States Code TITLE 18 - CRIMES AND CRIMINAL PROCEDURE

PART I - CRIMES CHAPTER 109 - SEARCHES AND SEIZURES

U.S. Code as of: 01/02/01

Section 2234. Authority exceeded in executing warrant. Whoever, in executing a search warrant,

willfully exceeds his authority or exercises it with unnecessary severity, shall be fined under this title or

imprisoned not more than one year. U.S. Code as of: 01/02/01

Section 2235. Search warrant procured maliciously. Whoever maliciously and without probable cause

procures a search warrant to be issued and executed, shall be fined under this title or imprisoned not

more than one year.

Section 2236. Searches without warrant. Whoever, being an officer, agent, or employee of the United

States or any department or agency thereof, engaged in the enforcement of any law of the United States,

searches any private dwelling used and occupied as such dwelling without a warrant directing such

search, or maliciously and without reasonable cause searches any other building or property

without a search warrant, shall be fined for a first offense not more than $1,000; and, for a subsequent

offense, shall be fined under this title or imprisoned not more than one year, or both.

This section shall not apply to any person -

(a) Serving a warrant of arrest; or

(b) Arresting or attempting to arrest a person committing or attempting to commit an offense in his

presence, or who has committed or is suspected on reasonable grounds of having committed a felony; or

(c) Making a search at the request or invitation or with the consent of the occupant of the premises.

More on Section 2236

17) Title 42 USC Section 1983 Laws: Cases and Codes: U.S. Code: Title 42: Section 1983
Sec. 1983. - Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, 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, except that in any action brought against a judicial officer

for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted

unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this

section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be

a statute of the District of Columbia

18) Title 42, U.S.C., Section 14141 Pattern and Practice

Laws: Cases and Codes: U.S. Code: Title 42: Section 14141

This civil statute was a provision within the Crime Control Act of 1994 and makes it unlawful for any

governmental authority, or agent thereof, or any person acting on behalf of a governmental authority, to

engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of

any governmental agency with responsibility for the administration of juvenile justice or the

incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected

by the Constitution or laws of the United States.

Whenever the Attorney General has reasonable cause to believe that a violation has occurred, the

Attorney General, for or in the name of the United States, may in a civil action obtain appropriate

equitable and declaratory relief to eliminate the pattern or practice.

Types of misconduct covered include, among other things:

1. Excessive Force

2. Discriminatory Harassment

3. False Arrest

4. Coercive Sexual Conduct


5. Unlawful Stops, Searches, or Arrests

19) CRAWFORD v. WASHINGTON

SUPREME COURT RULES 9-0

ON MARCH 8, 2004, SUPREME COURT RULES THAT HEARSAY EVIDENCE IN CHILD

ABUSE/NEGLECT AND DOMESTIC VIOLENCE CASES IS NOT ADMISSIBLE. PARENTS

HAVE THE CONSTITUTIONAL RIGHT TO CONFRONT THEIR ACCUSER UNDER THE 6TH

AMENDMENT. DCF, THE AAG AND THE STATES ATTORNEY MUST NOW COMPLY WITH

THE 6TH AMENDMENT IN CHILD ABUSE/NEGLECT AND DOMESTIC VIOLENCE CASES.

(a) That a child is in immediate and present danger of abuse by a family or household member,

based on the BURDEN OF PROOF.

20) Parental Due Process Act of 2005

109th CONGRESS

1st Session 2005 BILL

This shall be cited as the "Parental Due Process Act of 2005."

SECTION 2. FINDINGS AND PURPOSES.

(a) FINDINGS- Congress finds that--

(1) Parental rights are so fundamental to the human condition so as to be deemed inalienable.

Termination of parental rights equals or exceeds the detriment of criminal sanctions.

(2) The "liberty interest of parents in the care, custody, and control of their children is perhaps the oldest

of the fundamental liberty interests" recognized by the U.S. Supreme Court. Troxel v.

Granville, 527 U.S. 1069 (1999). Moreover, the companionship, care, custody, and management of a

parent over his or her child is an interest far more precious than any property right. May v. Anderson,

345 U.S. 528, 533, (1952). As such, the parent-child relationship is an important interest that undeniably

warrants deference and, absent a powerful countervailing interest, protection. Lassiter v. Department of

Social Services, 452 U.S. 18, 27 (1981).


(3) State and local family services, child protective agencies, and courts have not recognized the rights

of parents as inalienable, and, as a result, have failed to provide fundamental due process rights in the

investigation and legal proceedings to determine abuse, neglect, and the termination of parental rights.

(b) PURPOSE- The purpose of this Act is to provide core fundamental due process rights to parents

whose parental rights are subject to termination.

(c) SCOPE- The scope of this Act applies to any case in which parental rights are subject to termination

in a program or activity that receives federal financial assistance.

SECTION 3. DEFINITIONS.

As used in this Act:

(1) "Hearing" means any judicial or administrative hearing;

(2) "Law enforcement officer" means an employee, the duties of hose position are primarily the

prevention, investigation, apprehension, or detention of individuals suspected or convicted of offenses

against the criminal laws, including an employee engaged in this activity who is transferred to a

supervisory or administrative position, or serving as a probation or pretrial services officer;

(3) "Agency" means any state or local government;

(4) "Duress" consists of:

a. Unlawful confinement of the person of the party, or of the husband or wife of such party, or of an

ancestor, descendant, or adopted child of such party, husband, or wife;

b. Unlawful detention of the property of any such person; or,

c. Confinement of such person, lawful in form, but fraudulently obtained, or fraudulently made unjustly

harassing or oppressive.

(5) "Actual fraud" consists of any of the following acts, committed by a party, or with his connivance,

with intent to deceive another party thereto, or to induce him to enter into an agreement or to rely upon

it to his detriment:

a. The suggestion, as a fact, of that which is not true by one who does not believe it to be true;

b. The positive assertion, in a manner not warranted by the information of the person making it, of that

which is not true, though he believes it to be true;


c. The suppression of that which is true, by one having knowledge or belief of the fact;

d. A promise made without any intention of performing it; or,

e. Any other act fitted to deceive.

(4) "Undue influence" consists of:

a. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent

authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage

over him;

b. In taking an unfair advantage of another's weakness of mind; or,

c. In taking a grossly oppressive and unfair advantage of another's necessities or distress.

(5) "Malice" means conduct that is intended by the person described in subdivision (a) to cause injury to

the plaintiff or despicable conduct that is carried out with a willful and conscious disregard of the rights

or safety of others;

(6) "Emergency" means exigent circumstances in which immediate action is required to prevent the

imminent physical injury or death of a child.

SECTION 4. HEARINGS OPEN TO THE PUBLIC.

(a) Upon the request of a parent, guardian or custodian, the right to have proceedings open to the public

shall be guaranteed in the following circumstances:

(1) Any hearing for the purpose of terminating parental rights;

(2) Any hearing for the purpose of determining if a child is or has been deprived.

(b) Notwithstanding subsection (a), a judge may, upon consideration of written motion and papers filed

in opposition, exclude the public if it is determined, by a preponderance of the evidence that the safety

of the child would be in jeopardy by a public hearing. If the public is excluded from the hearing, the

following people may attend the closed hearing unless the judge finds it is not in the best interests of the

child:

(i) The child's relatives;

(ii) The child's foster parents, if the child resides in foster care; and,

(iii) Any person requested by the parent.


SECTION 5. TRIAL BY JURY.

Upon the request of a parent, guardian or custodian, the right to a trial by jury shall be guaranteed in the

following circumstances:

(1) Any hearing to terminate parental rights;

(2) Any hearing to determine if a child is or has been deprived.

SECTION 6. RELIGIOUS/CULTURAL/MORAL/ETHNIC VALUES AND BELIEFS OF PARENTS

In placing the legal custody or guardianship of the person of a child with an individual or a private

agency, a court shall take into consideration the religious, cultural, moral and ethnic values of the child

or of his/her parents, if such values are known or ascertainable by the exercise of reasonable care.

SECTION 7. ELECTRONIC OR DIGITAL RECORDING OF INTERVIEWS

Except in the case of an emergency, any law enforcement officer, agent or employee for a state's health

and welfare department or child protective services, or mental health professional, who interviews a

child for the purposes of investigation, shall electronically and/or digitally cause to be made an audio

and visual recording of all planned questioning of, and planned interviews with, children. All recordings

made pursuant to subsection (a) shall be made available to the parent; guardian or custodian of a child

not later than ten days prior to any hearing to terminate parental rights or to determine if a child is or has

been deprived.

SECTION 8. EVIDENCE IN FACT-FINDING HEARINGS

(a) Only evidence that is competent, material and relevant may be admitted in a fact-finding hearing.

(b) Any determination at the conclusion of a fact-finding hearing that a respondent did an act or acts

must be based on proof beyond reasonable doubt. For this purpose, an uncorroborated confession made

out of court by a respondent is not sufficient.

SECTION 9. RIGHT TO A SPEEDY TRIAL

(a) In that removal of a child from a home for even brief periods is an extreme hardship on families,

upon the request of a parent, guardian or custodian, the right to a speedy trial shall be

guaranteed in the following circumstances:


(1) Any hearing to terminate parental rights;

(2) Any hearing to determine if a child is or has been deprived.

(b) A hearing, as described in subsection a, shall be conducted within thirty days of any type of removal

of a child. In the event that the thirtieth day falls on a legal holiday or other day when the court is not in

session, the hearing shall be conducted prior to the thirtieth day. In no event shall a hearing be

conducted beyond the thirtieth day after the removal of a child if the right to a speedy trial has been

exercised.

SECTION 10. WAIVER OF RIGHTS

The rights of a parent or guardian as described in this Act cannot be waived, neither can parental rights

be terminated, if said waiver is due to:

(1) Mistake;

(2) Fraud;

(3) Undue influence; or

(4) Duress.

SECTION 11. IMMUNITY

(a) Notwithstanding any other provision of law, the civil immunity of juvenile court social workers,

agents or employees of a state's health and welfare department or child protective services or law

enforcement official authorized to initiate or conduct investigations or proceedings shall not extend to

any of the following:

(1) Perjury;

(2) Fabrication of evidence;

(3) Failure to disclose known exculpatory evidence;

(4) Obtaining testimony by duress, fraud, or undue influence.

(b) Notwithstanding any other provision of law, any prosecutor, investigator, agent or employee of a

state's health and welfare department or child protective services who induces a parent to waive any of

his or her rights under this Act by:

(1) Fraud;
(2) Undue influence; or

(3) Duress shall be subject to civil liability.

SECTION 12. DAMAGES

In the case of a determination by a court or jury of any violation of a parent's rights under this Act,

damages shall be presumed.

SECTION 13. ATTORNEYS FEES

Subsections (b) and (c) of section 722 of the Revised Statutes (42 U.S.C. 1988 (b) and (c)) (concerning

the award of attorney's and expert fees) shall apply to cases brought or defended under this Act.

SECTION 14. SEVERABILITY

If any provision of this Act or of an amendment made by this Act, or any application of such provision

to any person or circumstance is held to be unconstitutional, the remainder of this Act, the amendments

made by this Act, and the application of the provision to any other person or circumstance shall not be

affected.

6Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor shall any person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private

property be taken for public use, without just compensation.

Physiological Examination is an infringement on my rights as a parent, Custody Evaluation,

Reunification services, Child Protective Services, Family Maintenance Services are simply an

infringement on my rights to Privacy and of my home and property under the 4th amendment of the

Constitution.
7All Rights are expressly reserved at all times and no rights are waived at any time. Under no order or

circumstances do I willingly give up my rights. Any violation of my rights, is subject to the penalties

under the law and maybe tried as violations under color of law for any party who attempts to violate my

rights as a free man, never a slave and always a Citizen of the United States with immunities and rights

of a Citizen.

I declare under penalty of perjury the forgoing is true and correct.

Signed________________________________________ Date____________________________

Raymond G. Chapman, Sui Juris

Reserving All Rights—Giving up None