ABUSE OF DISCRETION--INVISIBLE TREASON
by Kirk Brothers
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INTRODUCTION Because the word "treason" has more than one meaning, we must first define the term as we shall use it here. The Constitution, in Article III, #3, defines treason narrowly and specifically as levying war against the political entity of the United States, by adhering to an enemy nation in time of war so as to give them aid and comfort. The only man to be tried for such treason was Aaron Burr--who was acquitted. But "treason" as commonly used is defined by Webster's Dic- tionary as "betrayal of a trust". It is synonymous with treachery, or faithlessness. This excerpt will prove that, by common usage of the terms, our Courts betray the trust of the American people--and with malicious intent--and therefore are "traitors" in the sense related to our use of "treason". THE TRUST WHICH IS BETRAYED Each and every law graduate, upon being admitted to the bar of any Court, takes a solemn oath to uphold and defend the Constitution of the United States. Each and every Judge, upon being sworn into office, repeats the oath to uphold and defend the Constitution of the United States. Furthermore, each and every Federal employee, regardless of job or professional level, takes the same oath--to uphold and defend the Constitution of the United States. Thus every Congressman, U.S. Attorney and Federal Judge has repeatedly sworn to place the Constitution above all other interests. Americans have been led to believe that ritual oath is bind- ing, and taken in good faith. But one of the best-kept secrets in America is that clearly-written and long-established rights implicit in the Constitution are routinely subverted to the inte- rest of "political correctness". This we will prove--by the standard of probable cause--by Court documents which have been deliberately suppressed to conceal the facts in a test case on Social Security. CREDIT WHERE CREDIT IS DUE The Memorandum of Law which we presented in our prior Article is in fact a consolidation of Memoranda in the case of RICHTER V UNITED STATES, which was tried by Judge Ralph W. Nimmons, Jr. in Tampa District Court (Docket 94-725-CIV-T) and subsequently re-heard by Judges Kravitch, Cox and Dubina in Atlanta Circuit Court (Docket #95-2653). The plaintiff--and subsequent appellant pro se in this action--was a Libertarian who spent more than ten years on a one-man crusade against "the system", and who gave his complete file of Court documents and personal notes to us, in the hope that they might be used to carry on his fight in the event of his death. If you found the task of rebutting his argument as impossible as climbing Mount Everest on a pogo stick, you might take solace in the fact that none of the U.S. Attorneys assigned to the case, nor the Judges who read his papers, could find any loopholes, either. So they simply suppressed it. Here now is the essence of the Government's one and only relevant paper from the District Court proceedings. Plaintiff had filed a Complaint including 16 pages of argument we have already quoted and, when Defendant failed to respond in 21 days, filed a motion for summary judgment, to force the issue to a head. THE GOVERNMENT'S DEFENSE "Comes now the United States of America, by and through counsel...[and] files its opposition to plaintiff's motion for summary judgment. In addition, the United States requests the Court to grant summary judgment in its favor...The grounds for this request are set forth fully below. For the convenience of the Court, a proposed order has been supplied." (COMMENT: How convenient! The defense attorney will write the judgment--all the Judge need do is sign it!) "In his complaint, plaintiff seeks a refund of 'coerced pay- ment of self-employment Social Security tax'...Plaintiff states that the funds at issue were collected by levy or paid under threat of levy. Raising a typical tax protestor type of argument, plaintiff contends that the social security tax is unconstitutional, but does not specify the provision of the Constitution that has been violated." (COMMENT: Plaintiff, who did not go to law school, thought the Fifth Amendment foundation was so obvious that it was not necessary to specify it. Our consolidated version used it in its proper sequence. By the way, in what manner is his a "typical tax protestor type" of argument?) "Initially, the United States notes that the documents attached to the complaint support a finding that the United States issued levies to collect unpaid form 1040 Federal income tax liabilities. This fact notwithstanding, the United States will address the assertion that the collection of Social Security tax violates the Constitution." (COMMENT: The U.S. Attorney suggested that because the tax was collected along with income tax, the two taxes were one and the same--disregarding CLARKE V COMMMISSIONER already cited. This vague suggestion is immediately referred to as "this fact". You didn't miss anything--there wasn't any- thing to miss.) "Social Security taxes are paid under the provisions of the Federal Insurance Contributions Act...The Supreme Court has held that the basic Social Security tax system is constitutional [citations for STEWARD MACHINE CO. V DAVIS and HELVERING V DAVIS, supra]. (COMMENT: So far, not a word about contract law, extortion, and the meaning--or even existence--of UNITED STATES V BUTLER) "Moreover, the courts that have addressed specific constitu- tional challenges to the Social Security tax have uniformly upheld the tax. [Citations for U.S. V LEE and three minor cases]... Accordingly, no issue of material fact exists and the United States is entitled to judgment as a matter of law." (COMMENT: The government's final citations included CELOTEX CORP. V CATRETT and MATSUSHITA ELECTRIC INDUSTRIAL CO. V ZENITH RADIO CORP. We are not making this up to create the impression the U.S. Attorney was incompetent. She was merely clutching at straws.) SUMMARY OF DEFENSE The government's cross-motion for summary judgment ran two and a half pages--about one page of which was devoted to headings and signatures. Not one word was devoted to BUTLER V U.S. The U.S. Attorney could find no answer, so filed a totally non- responsive and irrelevant argument. One might naively presume that such a one-sided case would be no problem to any judge. In fact, it was no problem at all. Several months later, Judge Nimmons ordered the Plaintiff to show cause why his case should not be dismissed for lack of prosecution under a local rule requiring the filing of a report on a pretrial conference between attorneys for both sides (which did not occur). Plaintiff argued persuasively that the right to summary judgement is a due process right created by Federal statute, and may not be abridged by a local rule. But the Judge's attempt to throw the case out on the slightest pretext appeared to show prejudice, for which the Judge should have reclused himself and had the case assigned to another Judge. For a Judge to sit on a case in which he has a conflict of interest is apparently an abuse of his discretionary powers. Plaintiff therefore filed a motion with the Administrative Judge seeking an order removing Judge Nimmons from the case on grounds of abuse of discretion. The Administrative Judge ignored plaintiff's motion. Nearly a year after the complaint was filed, Judge Nimmons issued his final order. WHAT JUDGE NIMMONS RULED "This cause comes before the Court on Plaintiff's Motion for Summary Judgment...and the United States' Opposition and Cross Motion for Summary Judgment...The Plaintiff has also filed for Administrative Hearing on Question of Abuse of Discretion by Trial Judge. "In his Complaint...Plaintiff seeks a refund of 'coerced payment of self-employment Social Security tax'...The Plaintiff alleges that the social security tax is unconstitutional, but does not specify the provision of the Constitution that has been violated." (COMMENT: Sound familiar? Did the Judge just land on Earth from outer space, and has no knowledge of the Constitution and the Fifth Amendment?) "Social Security taxes are paid under provisions of the Federal Insurance Contributions Act...The Supreme Court has held that the basic Social Security tax system is constitutional [the usual citations]. Moreover, the courts that have addressed specific challenges to the Social Security tax have uniformly upheld the tax. "The basis of Plaintiff's argument is that Social Security in toto is a coercive implied contract within the meaning of U.S. V BUTLER and is thus unconstitutional...The Plaintiff concedes that his position in 'overtly controversial' and 'bitterly divisive'....The Plaintiff then proceeds to quote Justice Brandeis in OLMSTEAD V UNITED STATES, Justice John Marshall in MARBURY V MADISON, and Justice Robert Jackson in TERMINIELLO V CHICAGO. "The Court nevertheless finds that there is no legal basis for the plaintiff's position and that he has failed to sustain his burden on the United States' cross motion for summary judgment." THE CRISIS IN LEGAL ETHICS Judge Nimmons' total disregard of Plaintiff's argument and BUTLER--shown by his mentioning only three irrelevant quotations of purely philosophical nature--is a widespread practice in Courts. But if Judge Nimmons was not impressed by Supreme Court writings on legal theory, you might find the quotations cited above refreshing in their integrity. This is what Brandeis wrote: "Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachments by men of zeal, well-meaning but without understanding." Marshall's words in a landmark case established the principle of judicial review of legislative acts. "The powers of the legislature are defined and limited; and that those powers may not be mistaken, or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be surpassed by those intended to be restrained? The distinction between government of limited and unlimited power is abolished, if these limits be not binding upon those on whom they are imposed. It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it." Jackson's comments on his Supreme Court colleagues was terse: "There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional bill of rights into a suicide pact." What is blatantly apparent from this case is that a government lawyer can win a case without having a case at all-- when the power of the government is in question. There is, of course, a charade of concern for Constituional rights, but only when a plaintiff alleges that some NON-GOVERNMENTAL power is being abused. If, for example, a militant feminist wishes to "crash" an all-male military academy where she is clearly unwelcome, she will prevail, on the narrow grounds that such schools are supported by public money. Courts do not consider the practical reality that females are genetically inferior to males as combat troops. Obviously, in time of war, when as many men as possible must be deployed in a fight to the death, womens' auxiliaries may serve in non-combat capacities--and do essential support jobs very well. But, to anyone with the brains of an angleworm, the thought of an army of Amazons conquering an army of big, strong men with no estrogen problems is ludicrous. But Judges will hear such cases, listening gravely like wise owls--and give a fair ruling (based on political correctness) for the one reason that such a suit is no threat to the political power structure. We were all taught that the Constitution separates the powers of government into three branches which, presumably, are to serve as watchdogs over each other. The legislative branch enacts statutes which the executive branch enforces. The primary purpose of the judicial branch is to guarantee to all Americans that government STAYS WITHIN ITS LIMITS. The Constitution itself compels only the Federal government to comply with the Constitu- tion, but since the 14th Amendment was enacted, all states are likewise compelled to protect the Federal rights of each and every American. Our great Chief Justice, John Marshall, in MCCULLOUGH V MARYLAND (an 1819 landmark case) wrote for all judges to read, "We must never forget that it is a CONSTITUTION we are expounding." Where are our John Marshalls in today's mob of political activists in black robes? The term "judicial ethics" appears to have become a classic illustrative example of the term, "oxymoron". The very Judges who were supposed to be watchdogs have become lap-dogs. Let us quickly list the violations of the Constitution which were blatantly committed by Federal Judges in our test case. First, Judge Nimmons' ruling was non-responsive to the ques- tion asked. It was also arbitrary, and at least capricious--if not frivolous--in its profession of ignorance as to what Consti- tutional right was infringed. Judge Nimmons' decision violated the rule of stare decisis, which in brief means that Supreme Court rulings are binding upon each and every other court in the United States, until such time as the Supreme Court may reverse its prior ruling. Obviously, only the Supreme Court may reverse the Supreme Court. Judge Nimmons was apparently prejudiced, as seen in his specifying that plaintiff's position was overtly controversial and bitterly divisive--and his clumsy attempt to dismiss the case on a non-existent pretext of lack of prosecution. The fact that Judge Nimmons himself ruled on the question addressed to the Administrative Judge concering Nimmons' alleged abuse of judicial discretion is further evidence of lack of impartiality--and the Administrative Judge was clearly a party to it. Because these errors in judicial conduct were deliberate rather than accidental, the evidence of abuse of discretion is even more compelling. Now, what Constitutional rights were infringed? Obviously, the Court abridged plaintiff's Fifth Amendment right to property, of which he may not by deprived by the crime of official extortion. In addition the Court denied plaintiff's statutory relief under 26 U.S.C. 7422 to sue the United States for a tax refund, and thereby his legal standing to ask a Court to answer a BUTLER question. Furthermore, the Court denied plaintiff's Common Law right to consensual contracts, and the inviolable rule that a coercive contract may not be upheld by any Court of Common Law. The Court also willfully denied plaintiff's Common Law right to an impartial Judge who gives a ruling which is responsive to the legal question put before the Court--and the protection of the rule of stare decisis. But, most importantly, the Court denied these identical rights to 266 million other Americans whose rights also on trial--and were likewise summarily, callously and maliciously denied. This is betrayal of trust on a colossal scale. But it gets worse. Plaintiff appealed to the Atlanta Circuit Court, rearguing the material argued below, now including the obvious Fifth Amendment matter, and the Government continued to "fudge" as it had below. WHAT THE APPEALS COURT SAID "In this appeal, appellant...argues that the Social Security tax system is unconstitutional....Because the Supreme Court in HELVERING V DAVIS [usual citation] held that the Social Security tax system was constitutional, [appellant's] claim is meritless. We, therefore, affirm the district court's grant of summary judg- ment in favor of the government." On the top of the cover page is the notation: DO NOT PUBLISH. And that is all. Not a word about BUTLER, or the REAL question put before the Courts. HOW THE COVER-UP WAS DONE Why was this judicial outrage never reported in the news? Very simple. The mass media are always prejudiced against cases brought by laymen who are forced by circumstances to act without a lawyer. In addition, the legal question asked was deliberately misstated by the Judges in their respective rulings. In plain words, the Judges LIED--but their malicious brush-off created the false impression that there was nothing of interest in the papers. Most pro se cases are without merit, and most pro se plain- tiffs write abominable papers. In such cases, Judges are justified in giving a very terse ruling, and legal reporters for the news media generally trust Judges to be fair. So if a pro se plaintiff tries to take his case to the media, claiming gross abuse of discretion, who will believe him? He lost a case and, because he had no lawyer, his argument is discredited because he is assumed to be incompetent, and too stupid to know it. His complaints of unfair treatment are dismissed as "sour grapes". He lost his case, so of course he's complaining! The psychology of the situation and the experience of newsmen with similar test cases--in which the plaintiff's argument was truly without merit--blind the average legal reporter to the fact that nothing ever written by any Judge was carved in stone by the finger of God, and therefore is not open to honest question. Our great Libertarian writer, Thomas Paine, had to find a free-thinking printer to publish his three classic political pamphlets: COMMON SENSE, THE RIGHTS OF MAN, and THE AGE OF REASON. In our case, no newspaper, news service, or TV network was open-minded enough--or interested enough--or competent enough--to see any news value in our attempts to publicize this test case. In short, the truth was suppressed--until now. We have made numerous references to Common Law rights and rules, of which most American laymen are totally ignorant. Because a general knowledge of a few basic historical facts and legal principles is essential if one is to understand our next Article, let us quickly review the most important ones here. SOCIETY VERSUS GOVERNMENT In COMMON SENSE, written in 1776, Thomas Paine in his intro- duction states that a long habit of not thinking a thing wrong gives it a superficial appearance of being right, and causes most people to resist change. Time, he said, makes more converts than reason. We of THE REVOLUTIONARY RIGHT feel that our time is run- ning out, and if we Americans do not start using our intelligence instead of emotions in deciding grave political and social ques- tions, we will have no one to blame but ourselves for the downfall of our nation. On page 1 of COMMON SENSE, Paine writes to the effect that most people are ignorant of the difference between society and government, or too stupid to care--and persons who don't know, or care, about these vital facts, will screw things up badly (this is a free paraphrase). Let's get the two concepts straight. Society is essentially a very good thing. It's the sum total of all voluntary associations by means of which individuals work in a cooperative manner to achieve mutual benefits. The process of working together is technically a "trans-action", which implies a good-faith contract. Consensual contracts and their counterparts, voluntary associations, are the basis of all societies everywhere. But every society includes some rotten apples who will cheat, lie or injure (even kill) to achieve selfish ends. To protect the honest members of society from the rotten apples, government is necessary. Government in the final analysis is law and order--police power. A thief must be forced to repay what was stolen--a murderer must be forced to pay the penalty, whether imprisonment or death. But when one tries to combine the benevolent aims of society with the coercive and punitive power of government, one creates a Frankenstein monster with a bizarre life of its own. ORIGINS OF LAW As Paine observed, government either comes FROM the People, or AT the People. Either sovereign power lies in the People, who delegate some of their rights to government--as a trade-off for the benefits of law and order--or sovereignty resides in govern- ment, which might condescend to bestow a few privileges upon the mob. In some cultures, a Priesthood rules by a pretense of Divine Authority--which Paine calls Government by Superstition. More commonly, a Monarch of some kind holds power by a pretense of Divine Right. In many countries where a monarchial tradition survives, laws were originally dictated by an all-powerful leader per force of conquest. English law as we know it began with the reign of William the Conqueror. In feudal times, the King's power was often delegated to minor "nobles" in numerous domains, who granted various rewards to their vassals in return for an oath of allegiance. The "rights of the Lord" often included the privilege of deflowering every virgin bride in his domain on her wedding night, before she slept with her husband. So much for the rights of the so-called nobility. In 1215 King John of England, facing a threat of rebellion by his nobles, signed the Magna Charta, liberalizing law according to the concept of Natural Law--law based on needs which are common to all humans. Common Law guarantees all our tradi- tional rights of due process--the presumption of innocence, the right to an unbiased Judge--the right to trial by jury, etc. But the heart and soul of Common Law is the rule of stare decisis (points decided), which provides as an inviolable principle that, once a point of law has been decided by a Court of Common Law, it is binding upon all subsequent Courts of Common Law, provided that all facts in the later case(s) are identical with the facts in the landmark (precedent-setting) case. Stare decisis guarantees that justice will be uniform. Obviously, if the same legal question may elicit different answers from different Courts, there is no rule of law, but only rule of men. Common Law has been the law of England to this day, and, because England has no written constitution, judicial rulings under Common Law provide a tradition upon which England relies. The rulings of Common Law were first compiled in definitive form in 1765-69 by Sir William Blackstone in his classic Commentaries. When English colonists migrated to the New World, they brought Common Law with them. When King George suspended their Common Law rights in retaliation for the Boston Tea Party and other acts of rebellion, colonists responded with three legal documents: 1) The Articles of Confederation, by which the 13 autonomous colonies joined to form the United States of America; 2) The Declaration of Independence, proclaiming the freedom of the United States from English rule; 3) The Virginia Enactment, establishing Common Law as THE LAW, IN AND OF the United States. Therefore, even before we had a Constitution, Common Law and American Law were one and the same. They still are. The Revolution began. Question: during the Revolution, where was our nation's government? Answer: there wasn't any. Society, in a pinch, can function quite well without govern- ment--for a short period of time--because government is secondary to society, and not the other way around. But it should be obvious that if there be no Constitutionally-authorized government, the police power of a nation is maintained only by default--as computer operators use the word. GOVERNMENT BY DEFAULT During the Revolution there was no time for political activities, so the 13 states fell back on Common Law, and continued to function as they had under their charters as colonies under English rule. Common Law protected all rights of due process; civil and criminal cases continued to be heard (perhaps swifter than usual), and the rule of stare decisis guaranteed uniformity of legal decisions. But as soon as the Revolution was over, the 13 states held conventions to create their individual Constitutions, while the Articles of Confederation were felt sufficient for the federal government. Unfortunately, it wasn't that easy. The existence of 13 different types of money--the proliferation of outrageous laws (e.g., any person from Rhode Island caught in Massachusetts could be branded on the forehead with a "B" for Blasphemy)--and the outbreak of minor revolts against the new government (Shays' rebellion being the catalyst)--proved the Confederation to be so weak as to invite a quick demise unless something were done to strengthen it. Hence the Constitution of 1787. It established our central- ized bureaucracy with certain exclusive powers, while others were to be retained by the several states. The success of the Feder- alists in establishing our government was--as we shall prove-- very much of a mixed blessing. We must first note that the Bill of Rights--an afterthought to which many Federalists were opposed (including James Madison, of all people)--does not create any rights. It merely acknow- ledges and guarantees each and every pre-existing right under English Common Law, of which all former colonists had expert knowledge. Yet it is often argued by Government lawyers in Constitutional test cases, that a particular right is not protected, because it is not specifically cited in the Bill of Rights. This is sheer pettifoggery by shysters, which Libertari- ans deem unworthy of government lawyers who are sworn to uphold the Constitutional rights of every citizen. But such arguments have won cases against civil rights, notably the Second Amendment right to bear arms. DEMOCRACY OR REPUBLIC? It is our observation that our government-controlled schools, where pebbles are polished and diamonds are dimmed for the sake of conformity to "correct" social attitudes, do a miserable job of teaching such vital first principles as the difference between a democracy and a republic. It is our opinion that most Americans have a vague idea there's not much differ- ence, because both democracies and republics hold periodic elec- tions in which the people vote. This is mis-education, for motives which will become clear in our next Article. Suffice it to say that democracy means that the people make their own laws by direct participation in the political process. Democracy in the United States still exists in New England town meetings, where the residents enact local regulations by a process of debate and voting for the fairest option. What's wrong with democracy? Very simple: when a majority rules, a minority has no rights --only whatever privileges may be bestowed by the majority. Take ancient Athens, for example. Athens was a city-state, and a true democracy. It was a center for the arts, a model of education in philosophy (the names of Socrates, Aristotle and Plato come to mind)--yet they had slaves. Aesop, whose fables are still read by children (and adults for sophisticated reasons) was a slave. The majority of Athenians wanted to own slaves, so that's the kind of laws they passed. In short, in a democracy, the power of government is virtually unlimited, and any numerical majority may impose any kind of oppressive laws against any minority. In contrast to this unfair arrangement, a Republic is government, not by the people themselves, but by elected representatives--and the people who establish the republic first agree on a Constitution which LIMITS THE POWER OF THEIR REPRESEN- TATIVES! The people who draft a Constitution are called the Framers, and the document they write must be ratified by a majority of the people of their nation. That is what happened in 1787 and ensuing years. Unfortunately for us, however, the Framers of our Constitution made ONE MAJOR LEGAL BLUNDER in writing it, which we shall expose in our next excerpt. Two of our 20th-century Supreme Court Justices had truly great minds and made inspired comments which we feel we must quote here. Louis Brandeis, in OLMSTEAD V UNITED STATES (277 U.S. 438, 478 (1928) wrote: "They [the framers of the Constitution] conferred, as against the government, the right to be let alone--the most comprehensive of rights, and the right most valued by civilized men." And Justice Robert Jackson, in AMERICAN COMMUNICATIONS ASSOCIATION V DOUDS, 339 U.S. 382, 442 (1950) wrote: "It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error." Again we might ask, "Where are the Brandeises and Jacksons to be found in present-day Courts?" The answer is, "There aren't any." This we must change, and damn fast, or our monuments of government will lie, like the statue of Ozymandias, in a desert where, boundless and bare, the lone and level sands stretch far away. SUMMARY This manifesto builds a chain of reasoning by which we hope to galvanize the American people out of their apathy and docility toward our national crisis. Each Article is based upon the preceding material, so it is vital that we understand, and agree on, what has been said before. So far we've given you the good news that Social Security is a blatant example of official extortion--a CRIME committed against every American BY THE GOVERNMENT through its tax agency, the Internal Revenue Service. In addition we've documented the cheering fact that our Federal Judges routinely suppress any Constitutional question which would threaten the power structure which they are supposed to hold in check. We remind you that every Judge swears to place the Constitution above partisan politics--but the facts show that virtually every Judge is a hatchet man for his party machine. In addition, we've laid foundation for our third Article by briefly reviewing the concepts of society versus government, democracies versus republics, the origins of American law in Common Law, and a few historical facts (such as government by default) which most Americans have forgotten--if they were ever taught them in the brainwashing institutions known as the American public schools. If all the good news up to this point has raised your spirits and hopes, you'll be ready for the bad news.