(PDF Version)UNITED STATES DISTRICT COURT
FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
| Terance Healy | ) |
| Todd M. Krautheim | ) |
| in the name of the United States | ) Civil Action No# 13-4614 |
| ) |
| v. | ) |
| Kathleen Kane | ) |
| Pennsylvania Attorney General; | ) |
| and | ) |
| The Attorneys General of the United States | ) |
MEMORANDUM IN SUPPORT OF PLAINTIFF’S RESPONSE TO
ATTORNEY GENERAL KANE’S MOTION TO DISMISS COMPLAINT
STATEMENT OF THE CASE
1. Plaintiffs have filed this Constitutional Challenge on behalf of themselves and in the name of the United States and properly served it upon Attorneys General of the United States challenging the constitutionality of Rule 1.6 – Confidentiality of Information of the Rules of Professional Conduct.
2. Plaintiffs challenge the constitutionality of Rule 1.6 Confidentiality of Information of the Rules of Professional Conduct as the rule causes the complete denial of constitutionally protected rights while subverting justice and corrupting the judiciary. (Initial Pleading August 8, 2013, #5 Statement of Claim)
LAWFUL ACTION
3. Plaintiffs are subject to the laws of the Commonwealth of Pennsylvania and the United States of America.
4. The Attorneys General are subject to the laws of their respective states and the United States of America. The Attorneys General, as attorneys, are required to follow the Rules of Professional Conduct.
5. Plaintiffs have stated that they are NOT BOUND by the Rules of Professional Conduct and, as such, are lawfully permitted to take this action to address the unlawfully enacted, improperly constructed, unjust and unconstitutional law.
6. Pursuant to Rule 1.6, the Attorneys General cannot lawfully take any action to address the constitutionality, the lack of enforcement, and the judicial corruption which mandates a loss of judicial integrity. Paradoxically, the continued injustice for the victims denied their rights and liberties is an indirect result of Rule 1.6.
7. The fifty six (56) Attorneys General of the United States, have yet to file a responsive pleading to the August 8, 2013 Challenge with any defenses, admissions or denials of the allegations or the substance of the constitutional issue.
RESPONSIBILITY
8. The Attorneys General have a responsibility and jurisdiction to address the constitutionality of laws in their respective states, as such Plaintiffs have served the Attorney General with the Constitutional Challenge pursuant to Rule 5.1(a)(2).
9. Attorney General Kane’s Motion to Dismiss is approaching this challenge as a §1983 complaint and citing case law which does not apply to a Constitutional Challenge, or to the Plaintiffs who have taken on the role usually presented by an Attorney General.
10. There is no case law, precedent or citations available which addresses the lawful, but unconstitutional, overthrow of every state government where the Judiciary usurps the power of the Governor and the Legislature and prevents prosecution for sedition and treason against the person(s) or organization involved..
“America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves.” - Abraham Lincoln ¹
1. “At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.” – Abraham Lincoln
(from “The Perpetuation of Our Political Institutions: Address Before the Young Men’s Lyceum of Springfield, Illinois” January 27, 1838) |
11. Article III of the Constitution grants the Judicial Branch authority to adjudicate cases and controversies. Plaintiffs have presented their case, controversies and injuries in their initial pleading, and specifically in paragraphs #5, 10, 11, 12, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 60, 62, 63, 64, 65, 67, 68, 69, 70, 71, 72, and 75. The Plaintiffs’ have a direct stake in the matters which are redressable by this Federal Court.
12. The Constitutional Challenge (#13-4614) filed on August 8, 2013 is hereby incorporated by reference in its entirety, and specifically for the paragraphs above mentioned.
13. Attorney General Kane’s statement regarding the constitutionality of the law having no effect on the plaintiffs is a gross misstatement. Rule 1.6 mandates those who are bound by the rule to conceal injustice; ignore corruption; dismiss crime; endorse judicial misconduct; and deny any lawful ability or jurisdiction to enforce the law. These types of neglectful actions have had an effect on the Plaintiffs, and the entire country.
14. Attorney General Kane has publicly stated that
“The Attorney General has a multitude of duties. The first is to protect and defend and obey the Constitution of the United States and of Pennsylvania. The oath that I took on January 15 said exactly that.”
“One of the other duties is to enforce all of the laws of the Commonwealth until such time as a court tells you otherwise. I will do just that.”
“Another one of the Attorney General duties is to act as the lawyer for all of the state agencies including the Governor and the Secretary of Health.”
“ I am protecting and defending the Constitution as I see fit. I will enforce all of the laws of the Commonwealth.”
“As a lawyer, I am a lawyer first. I must follow the Rules of Professional Conduct.”
- Face the State, Sunday August 18, 2013 ²| 2. Face The State with Robb Hanrahan, CBS, 21 News, August 18, 2013 (Edited without affecting context) |
15. As a lawyer, who must follow the Rules of Professional Conduct, Rule 1.6 has overruled the Law, the Constitution of the Commonwealth of Pennsylvania, and the Constitution of the United States, while preventing the Attorney General – the top law enforcement officer in the state - from lawful action.
16. Rule 1.6 has additionally enabled County District Attorneys to usurp law enforcement power from the County Sheriff – the highest law enforcement officer in the county.
17. Where all law enforcement activity (investigation and prosecution) must be authorized by the County District Attorney or the Attorney General – both of whom MUST be attorneys who MUST follow the Rules of Professional Conduct, Rule 1.6 effectively denies victims of any course of action to address judicial misconduct, judicial corruption, or any criminal action which will expose judicial misconduct or corruption, or criminal activities which are endorsed by a member of the judiciary.
PLAINTIFFS CLAIM AND STANDING FOR RELIEF
18. The settled rule in the Third Circuit, as in all Federal Courts, is that “dismissal for failure to state a claim is appropriate only if it is beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” To make this determination the court must “accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom.”
19. Statements in documents filed in this Court by Attorney General Kane support and confirm the validity and truth of Plaintiff’s allegations regarding (1) the failure to enforce the law ³, (2) the responsibility for the law ³ and (3) the ignorance of the damages caused as a result of the law ³.
3. Pennsylvania Attorney General Kane’s Memorandum of Law in Support of Motion for Extension of the Responsive Pleading Deadline and Waiver of the Pro Hac Vice Requirements for Non-Pennsylvania Defendants filed September 6, 2013.
3. Attorney General Kane’s Memorandum of Law in Support of Her Motion To Dismiss Plaintiffs’ Complaint filed September 27, 2013.
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20. Attorney General Kathleen Kane has ignored and denied the Plaintiffs any opportunity to present their case and their loss of rights and liberties. This has also been the case with predecessors Linda Kelly and Tom Corbett.
21. The Attorney General has lawfully (pursuant to Rule 1.6) denied the Plaintiffs any remedy to their continued denial of constitutionally protected rights and liberties.
22. The allegations in the Challenge indicate denial of access to the courts for redress of grievances. Plaintiffs will clearly demonstrate the denial to have their cases heard by an unbiased tribunal; with notice of the proposed action and the grounds asserted for it; with opportunity to present reasons why the proposed action should not be taken; the right to present evidence, including the right to call witnesses; the right to know opposing evidence; the right to cross examine adverse witnesses; a decision based on the evidence presented; the requirement that the tribunal prepare a record of evidence presented; the requirement that the tribunal prepare written findings of fact and reasons for its decision.
23. Plaintiffs are requesting the constitutional determination of this court and requesting such preventive relief for a permanent resolution which is necessary to restore their constitutionally protected rights and liberties as citizens of the United States.
24. Standing to challenge the constitutionality of a statute is accurate where the statute would otherwise deprive a party of a right or a privilege even where the statute itself does not apply to them.
CONSTRUCTION OF STATUTES
25. Attorney General Kane has correctly indicated that Rule 1.6 was enacted by the Supreme Court of Pennsylvania without benefit of statutory review and construction by the Legislature or proper signature of the Governor.
26. Pennsylvania Chapter 19 Sub B §1925 – Constitutional Construction of Statutes
“The provisions of every statute shall be severable. If any provision of any statute or the application thereof to any person or circumstance is held invalid, the remainder of the statute, and the application of such provision to other persons or circumstances, shall not be affected thereby, unless the court finds that the void provisions of the statute are so essentially and inseparably connected with, and so depend upon, the void provision or application, that it cannot be presumed the General Assembly would have enacted the remaining valid provisions without the void one; or unless the court finds that the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with legislative intent.”
27. Rule 1.6 is severable without affecting the remaining provisions of the Rules of Professional Conduct.
28. Rule 1.6 was not enacted with benefit of the General Assembly and, as such, it cannot be assumed nor ascertained to be an essential part of the Rules of Professional Conduct.
29. Rule 1.6 was not enacted by the General Assembly and, as such, without benefit of the legislative intent controls §1921(a), (b), (c) and the presumptions in ascertaining legislative intent §1922.
30. The Attorney General’s reference to Article V, Section 10(c) of the Pennsylvania Constitution does not authorize the Supreme Court the ability to construct and enact laws which usurp enforcement power and mandate confidentiality to conceal and prevent prosecution of criminal actions by legal professionals.
ON BEHALF OF THE UNITED STATES
31. Plaintiffs will present circumstances where the Attorneys General have demonstrated their inability to take action which exposes judicial misconduct, not only for the named plaintiffs, but also for those on whose behalf the plaintiffs have filed – where a large portion of the citizenry have been placed at risk and the Attorneys General have ‘lawfully’ failed to take action to investigate or prosecute.
32. Plaintiffs additionally offer the extreme examples of crimes committed against the citizens of Pennsylvania and the United States which involve actions relating to attorney or judicial misconduct including Cash for Kids (Luzerne County, PA), Foreclosure Crisis (Nationwide), Penn State University Scandal (State College, PA).
33. In each additional example, the crimes were permitted to continue where any investigation/prosecution would have resulted in the exposure of crimes and misconduct where Rule 1.6 mandated confidentiality of information and prevented lawful action by a District Attorney, an Attorney General or any officer of the court.
34. Attorney General Kane will need to further explain how the declaration of a law being UNCONSTITUTIONAL has no effect, or will have no effect on the Supreme Court of Pennsylvania as stated in her Motion to Dismiss (B).
35. Plaintiffs have not filed this as a personal claim against Attorney General Kathleen Kane seeking damages.
36. Attorney General Kane has been served with the Challenge as the Attorney General is the appropriate person with whom the issue of constitutionality of a state law must be addressed within the state pursuant to Rule 5.1(a)(2), as the other Attorneys General are similarly positioned within their state governments and have been similarly served with the challenge.
37. Plaintiffs have filed a Constitutional Challenge with The United States District Court for the Eastern District of Pennsylvania and served it upon the Attorneys General of each state seeking a determination that Rule 1.6 is unconstitutional which will restore the constitutional rights of litigants while restoring the integrity and reputation of the judiciary and the legal profession and delivering to the legislature the ability to perform the duties of their position to responsibly manage the law.
STANDARDS FOR DEFENSES BY MOTION
38. The standard for subject matter jurisdiction pursuant to Rule 12(b)(1) has been presented and met by the Plaintiffs.
39. When deciding a 12(b)(1) motion, “dismissal for lack of jurisdiction is not appropriate merely because the legal theory alleged is probably false, but only because the right claimed is ‘so insubstantial, implausible, foreclosed by prior decisions of the Supreme Court, or otherwise completely devoid of merit as not to involve a federal controversy.’” Kulick v. Pocono Downs Racing Association 816 F.2d 895, 899 (3d Cir. 1987) (quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666, 94 S. Ct 772, 776, (1974)).
40. The ‘irreducable constitutional minimum of standing contains three elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, the plaintiff must have suffered an injury in fact – an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Id. Internal citations omitted). A particularized injury in one which affects the plaintiff in a personal and individual way. Id. At n.1. Second, there must be a causal connection between the injury and the issue complained of. (citing Simon, 426 U.S. at 41). Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Id. (citing Simon, 426 U.S. at 38).
41. The standard for personal jurisdiction pursuant to Rule 12(b)(2) has been presented and met by the Plaintiffs.
42. The standard for venue pursuant to Rule 12(b)(3) is properly placed in The United States District Court of the Eastern District of Pennsylvania for a civil action:
- where a substantial part of the events giving rise to the claim occurred;
- where plaintiffs are residents of the judicial district;
- where defendant is an officer of the state acting in official capacity or under color of legal authority.
43. The standard for process pursuant to Rule 12(b)(4) having been commenced on August 8, 2013 with the filing of the Challenge with the District Court; and the US Clerks docketing and issuance of the Summons and Notice.
44. The standard for service of process pursuant to Rule 12(b)(5) having been accomplished by the direct service of the initial pleading, summons and notice to each Attorney General via United States Postal Service Certified Mail Return Receipt Requested on August 13, 2013. A Certificate of Service including signed receipts from each Attorney General was filed with the District Court Clerk on September 6, 2013.
45. The standard for stating a claim upon which relief can be granted pursuant to Rule 12(b)(6) has been presented and met by the Plaintiffs.
46. When deciding a 12(b)(6) motion, a dismissal may only be granted where the allegations fail to state any claim upon which relief can be granted. See Morse v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir. 1997). A court must view all facts, and reasonable inferences drawn therefrom, in the light most favorable to the non-movant. Fed. R. Civ. P. 12(b)(6); see also Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). However, the Court will construe a pro se Plaintiff’s complaint more liberally and hold it to a less stringent standard than a pleading drafted by an attorney. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292 (10976); Haines v. Kerner, 404 U.S. 519, 521, 92 S. Ct. 594, 5965 (1972).
47. The general rules of pleading still require only a short and plain statement of the claim showing that the pleader is entitled to relief, not detailed factual allegations. Phillips, 515 F.3d at 231.
48. The Court must “determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Pinkerton v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir 2002).
49. Pro se plaintiffs are often unfamiliar with the formalities of pleading requirements. Recognizing this, the Supreme Court has instructed the district courts to construe pro se complaints liberally and to apply a more flexible standard in determining the sufficiency of a pro se complaint than they would in reviewing a pleading submitted by counsel.” (See e.g., Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S.Ct. 173, 175-76, 66 L.Ed.2d 163 (1980) (per curiam); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.)
CONCLUSION
50. Plaintiffs represent that while affected by Rule 1.6, they are NOT bound by Rule 1.6 and as such Plaintiffs are in the unique position to be acting lawfully with proper standing while having valid cause for relief in the proper forum for the matter to be addressed.
51. Plaintiffs request that Attorney General Kane’s Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6) be DENIED with prejudice.
52. In the interest of continuing with the stated goal of a “just, speedy and inexpensive determination“ of this action, Plaintiffs request that the Motion to Dismiss be DENIED with prejudice so that the court will not be inundated with 55 further motions for dismissal raising these same standard procedural defenses by the Attorneys General, however DENIED without prejudice to raise the issue in their responsive pleadings to the challenge.
Respectfully,
| Terance Healy | Todd M.Krautheim |
| c/o 871 Mustang Road | 207 Woodspring Circle |
| Warrington, PA 18976 | Doylestown, PA 18901 |
