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Mary Jane Duchene, Civil Rights, has removed a Noise Ordinance to Fed Court, based on lack of Long Form Complaint, Name of Complaintant, Selective Prosecution,due process and civil rights violations by City Attorney Kori Land of the www.levander.com Law Firm
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United States District Court
State of Minnesota
City of West St. Paul, Plaintiff, Notice of and Removal of Dakota County
District Court Criminal Case on Groundsvs. of Judicial Prejudice and Violations of
14th Amendment Due Process Rights.
Mary Jane Duchene, Defendant
Federal Court File no.___________
Dakota County Citation no. 3-441797
Dakota County Court file: 19WS-CR-09-
15734
TO: Dakota County District Court, Attorney for the City of West St. Paul
The undersigned removed this to US District Court BY VIRTUE OF 28 U.S.C. 1443;
Any of the following ... criminal prosecutions, commenced in a State court
may be removed by the defendant to the district court of the United States
for the district and division embracing the place wherein it is pending:
(1) Against any person who is denied or cannot enforce in the courts of
such State a right under any law providing for the equal civil rights of
citizens of the United States, or of all persons within the jurisdiction
thereof[.]
on the following grounds:
1) This Dakota County criminal action is observably a malicious prosecution by
the plaintiffs in that action and the plaintiffs failed to comply with the legal process
required by law and the Fourteenth and Fifth Amendment of the US Constitution,
by stating facts which comprise a criminal action, in continuing prosecution, which is
shown in the selected court documents attached hereto.
That established US Supreme Court requirements as to required
specificity of a criminal accusation, see. e.g. United States v. Cruikshank,
92 U.S. 542 (1876), quoted and affirmed in Russell v. United States, 369
U.S. 749 at 763-765, which in turn is cited with approval in State v. Gross,
387 N.W. 2d 182 at 189 (Minn. App. 1986).
That the right to a specific accusation including separate counts for1
distinct offenses charged has been incorporated by the fourteenth
amendment to the United States Constitution. See: e.g. Cole v.
Arkansas, 333 U.S. 196 at 201 (1942), and Faretta v. California, 442 U.S.
806 at 818(1975).
The plaintiffs have tried to allege that a police officer, allegedly hear a barking
dog noise at my property, from a distance of over 200 feet, when scientific evidence
clearly shows it would be impossible to identify such a sound, or even hear it, from
such a distance, because sound diminished by about 75% at a distance of 200 feet or
sixty meters, SEE SOUND CALCULATOR:
http://www.sengpielaudio.com/calculator-distance.htm.
The failure to withdraw the criminal complaint, AND INSTEAD RELENTLESSLY
PURSUE MALICIOUS PROSECUTION, shows the plaintiffs are relying on a failure
of due process and fairness in the Dakota County Courts and there is obvioulsy the
potential for progressively more insane criminal accusations to transpire in future
because of this case.
2) The plaintiff have done this as part of a pattern of misconduct which has
occurred over a period of more than fifteen years.
3) The defendant cannot get a fair trial in Dakota County, as detailed in the
select Dakota county court documents attached hereto, as there has been a hostile
history with the Dakota County.
Federal law requires the automatic disqualification of a Federal judge under certain
circumstances.
In 1994, the U.S. Supreme Court held that "Disqualification is required if an objective
observer would entertain reasonable questions about the judge's impartiality. If a judge's
attitude or state of mind leads a detached observer to conclude that a fair and impartial
hearing is unlikely, the judge must be disqualified." [Emphasis added]. Liteky v. U.S., 114
S.Ct. 1147, 1162 (1994).
Courts have repeatedly held that positive proof of the partiality of a judge is not a
requirement, only the appearance of partiality. Liljeberg v. Health Services Acquisition
Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988) (what matters is not the reality of bias or prejudice
but its appearance); United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985) (Section 455(a)
2
"is directed against the appearance of partiality, whether or not the judge is actually
biased.") ("Section 455(a) of the Judicial Code, 28 U.S.C. 455(a), is not intended to protect
litigants from actual bias in their judge but rather to promote public confidence in the
impartiality of the judicial process.").
That Court also stated that Section 455(a) "requires a judge to recuse himself in any
proceeding in which her impartiality might reasonably be questioned." Taylor v. O'Grady,
888 F.2d 1189 (7th Cir. 1989). In Pfizer Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972), the Court
stated that "It is important that the litigant not only actually receive justice, but that he
believes that he has received justice."
The Supreme Court has ruled and has reaffirmed the principle that "justice must satisfy the
appearance of justice", Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038 (1960), citing
Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13 (1954). A judge receiving a bribe from
an interested party over which he is presiding, does not give the appearance of justice.
"Recusal under Section 455 is self-executing; a party need not file affidavits in support of
recusal and the judge is obligated to recuse herself sua sponte under the stated
circumstances." Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989).
Further, the judge has a legal duty to disqualify himself even if there is no motion asking for
his disqualification. The Seventh Circuit Court of Appeals further stated that "We think
that this language [455(a)] imposes a duty on the judge to act sua sponte, even if no motion or
affidavit is filed." Balistrieri, at 1202.
Judges do not have discretion not to disqualify themselves. By law, they are bound to follow
the law. Should a judge not disqualify himself as required by law, then the judge has given
another example of his "appearance of partiality" which, possibly, further disqualifies the
judge. Should another judge not accept the disqualification of the judge, then the second
judge has evidenced an"appearance of partiality" and has possibly disqualified himself/
herself. None of the orders issued by any judge who has been disqualified by law would
appear to be valid. It would appear that they are void as a matter of law, and are of no legal
force or effect.
Should a judge not disqualify himself, then the judge is violation of the Due Process Clause
of the U.S. Constitution. United States v. Sciuto, 521 F.2d 842, 845 (7th Cir. 1996) ("The
right to a tribunal free from bias or prejudice is based, not on section 144, but on the Due
Process Clause.").
Should a judge issue any order after he has been disqualified by law, and if the party has
been denied of any of his / her property, then the judge may have been engaged in the
Federal Crime of "interference with interstate commerce". The judge has acted in the
judge's personal capacity and not in the judge's judicial capacity. It has been said that this
judge, acting in this manner, has no more lawful authority than someone's next-door
neighbor (provided that he is not a judge).
However some judges may not follow the law.
If you were a non-represented litigant, and should the court not follow the law as to
non-represented litigants, then the judge has expressed an "appearance of partiality" and,
under the law, it would seem that he/she has disqualified him/herself.
However, since not all judges keep up to date in the law, and since not all judges follow the
law, it is possible that a judge may not know the ruling of the U.S. Supreme Court and the
other courts on this subject. Notice that it states "disqualification is required" and that a
judge "must be disqualified" under certain circumstances.
3
The Supreme Court has also held that if a judge wars against the Constitution, or if he acts
without jurisdiction, he has engaged in treason to the Constitution. If a judge acts after he
has been automatically disqualified by law, then he is acting without jurisdiction, and that
suggest that he is then engaging in criminal acts of treason, and may be engaged in extortion
and the interference with interstate commerce.
Courts have repeatedly ruled that judges have no immunity for their criminal acts. Since
both treason and the interference with interstate commerce are criminal acts, no judge has
immunity to engage in such acts.
4) The defendant’s First Amendment rights are also being abused by this
action as this action appears to be retaliation by the City of West St. Paul Attorney,
for speaking out on disability issues, via a web site, relevant to Alice Krengel, as the
citation was issued one week after the Minnesota Supreme Court ruled against that
City Attorney, and in favor of Ms. Krengel.
RELIEF REQUESTED
1. AN INJUNCTION PROHIBITING THE CITY OF WEST ST. PAUL FROM
CONTINUING THIS MALICIOUS PROSECUTION, AND CONTINUING TO
SOLICIT AND ENGAGE IN DUE PROCESS VIOLATIONS IN THIS ACTION.
2. DAMAGES (INCLUSIVE BUT NOT LIMITED TO ACTUAL, PUNITIVE,
AND EXEMPLARY) FOR ENGAGING IN A LONG TERM PATTERN OF
HARASSMENT AGAINST THE DEFENDANT, FOR AN UNSPECIFIED AMOUNT.
January 11, 2010
Respectfully Submitted:
Mary Jane Duchene, BA, BS
1144 Ottawa Avenue
West St,. Paul, MN 55118
Fax: 651 457 4376
4
MariJaynDuchene@aol.,com
http://www.angelfire.com/mn3/advoca
te6/2009dog/wspnoise.html
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West St. Paul, Minnesota, RE: Alleged Noise Violations
“Once you eliminate the impossible, whatever remains, no matter how improbable, must be the truth.
Sr. Arthur Conan Doyle
Calculator for determining amount sound diminishes with distance:
http://www.sengpielaudio.com/calculator-distance.htm.
Application for Public Defender: http://www.mncourts.gov/ruledocs/criminal/forms/RCRPform47.pdf
FORM
http://www.mncourts.gov/documents/0/Public/Rules/Crim_Rules__APPENDIX_OF_FORMS_eff_1006.htm
Citation, 7/24/2009: LINK
Demand Long Form Complaint LINK
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Page 1 of 10West St. Paul, Alledged Noise Violations
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Long Form Complaint 7/31/2009 LINK
Initial Motion to Dismiss, inclusive long form complaint provided
LINK
Motion to Vacate and Reverse LINK
WARRANT LINK
Continuance LINK
MOTION TO DISMISS, November 25, 2009 LINK
REQUEST FOR JUDICIAL REVIEW, PREJUDICE, December 09, 2009
LINK
MOTION FOR ORDER COMPELLING RELEASE OF
EXCULPATORY EVIDENCE, December 16, 2009
LINK
Memoradum Support Motion to Dismiss of 11/25/2009, January 13, 2010
LINK
SUPPLEMENTAL MEMORANDUM SUPPORTING DECEMBER 16, 2009 MOTION FOR ORDER COMPELLING RELEASE OF EXCULPATORY EVIDENCE, January 14, 2010
LINK
MOTION FOR SUMMARY ORDER COMPELLING RELEASE OF EXCULPATORY EVIDENCE, January 17, 2010
LINK
REMOVAL TO FEDERAL COURT, JANUARY 11, 2010
Mary Jane Duchene Plaintiff: City of West St Paul Defendant: Mary Jane Duchene Case Number: 0:2010cr00012
LINK
Page 2 of 10West St. Paul, Alledged Noise Violations
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Filed: January 13, 2010 Court: Minnesota District Court Office: DMN Office [ Court Info ]
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Front Row (left to right): Police Officer John Reynold, Officer Jennifer Hobbs, Sgt. Margaret SchultAudra Rawlings, Officer Elizabeth Schult, Officer Joey McCollum, Officer Don Weber, Police Sergeant
Tom Fangel.
http://www.ci.west-saint-paul.mn.us/index.asp?Type=B_LIST&SEC={5AB2A4C2-6052-4911F1B-3C51575DB80A}#{F9B67795-70B5-4335-B2BE-77C50FD85B54}
"Lost/Found Pets
If a pet has been found, and the pet has a license tag, call the West St. Paul Municipal Center at 651-552-4100. The City has a record of all licenses and owners. You can also inquire about lost
or found pets by calling the petline at 651-322-2323."
Alice Krengel v. City WSP, case won, in Minnesota Supreme Court, one week before July 24, 2009
Supreme Court Decision 7/16/2009
http://www.murderbydiabetes.org/
Precedent, Due Process and Long Form Complaint:
1997 - Dakota County Judge Harvis ruled that prosecution must amend the long form complaint to include both a statement of probable cause
and statement of case, or facts showing basis and justification for the criminal charges.
The prosecution failed to amend the long form complaint and the case was dismissed.
Dakota County Court file T2-97-24334
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U.S. Supreme Court, U S v. CRUIKSHANK, 92 U.S. 542 (1875), 92 U.S. 542
COLE V. ARKANSAS, 338 U. S. 345 (1949)
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Page 422 U. S. 818 III This consensus is soundly premised. The right of self-representation finds support in the structure of the Sixth Amendment, as well as in the English and colonial jurisprudence from which the Amendment emerged. A The Sixth Amendment includes a compact statement of the rights necessary to a full defense:"In all criminal prosecutions, the accused shall enjoy the right . . . 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 defence."Because these rights are basic to our adversary system of criminal justice, they are part of the "due process of law" that is guaranteed by the Fourteenth Amendment to defendants in the criminal courts of the States. [Footnote 14] The rights to notice, confrontation, and compulsory process, when taken together, guarantee that a criminal charge may be answered in a manner now considered fundamental to the fair administration of American justice -- through the calling and interrogation of favorable witnesses, the cross-examination of adverse witnesses, and the orderly introduction of evidence. In short, the Amendment constitutionalizes the right in an adversary criminal trial to make a defense as we know it. See California v. Green, 399 U. S. 149, 399 U. S. 176 (Harlan, J., concurring).
Page 9 of 10West St. Paul, Alledged Noise Violations
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