J.A.I.L. News Journal
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Los Angeles, California                                        September 18, 2005
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www.SouthDakotaJudicialAccountability.org
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What J.A.I.L. Would Accomplish
Re: The Right to Petition
An analysis by Barbie, victoryusa@jail4judges.org
(Edited by Ron Branson)
It should be noted that J.A.I.L. takes no position re: tax laws.
 
As some of you may already know, on August 31, 2005, the WTP ("We The People") federal lawsuit on the Right to Petition Congress for Redress of Grievances was dismissed by U.S. District Judge Emmet G. Sullivan, District of Columbia. It is on this subject I offer my thoughts  regarding this particular case. This attack upon the First Amendment is yet another Wake Up Call to the People that we must act NOW-- and what better opportunity than to get behind the South Dakota J.A.I.L. effort currently in progress? If you haven't been convinced before, doesn't this tyrannical decision convince you that we must implement the SOLUTION? NOW?  Get J.A.I.L. qualified for the 2006 ballot in South Dakota for the sake of all American People! www.sd-jail4judges.org or call SDJA at (605) 231-1418.
 
We recently published a J.A.I.L. News Journal (9/13/05) on The Special Grand Jury (SGJ). It's important that everyone read the J.A.I.L. Initiative and understand what it says. For purposes of this report, I'm referring to the South Dakota initiative, since that's one we're actively pursuing now.
 
The SGJ is the operative body in the J.A.I.L. process. It is described in 3. A complaint is filed, the defendant-judge may file his answer stating his defense, and the complainant may file a reply to the answer. The SGJ examines both the complaint, the judge's answer, and the reply thereto. Their examination is to be based on common sense and does not require a Master's Degree in Government or Law to figure out. In fact, a formal education by government schools may be detrimental because of the brainwashing and propaganda that is taught, especially in law schools. (e.g., "The law is not what the law says, but what the judge says the law says.")
 
The foundation of J.A.I.L. is based on the most common denominator of mankind, i.e., the Laws of Nature explained below. A good background for understanding this analysis is the JNJ dated 10/23/04 titled "To Enforce The Constitution."
 
Summary of Basic Principles:
--Absolute (uncontrolled) power in man = tyranny (unnatural law).
 
--Tyranny = force against the Laws of Nature. 
 
--To prevent tyranny, by Nature there must be an intermediate authority between government and the governed. (a charter/constitution)
 
--By Nature, man must first create that intermediate authority which prescribes the powers and limitations of government.
 
--The only document that meets that function as "intermediate body" (or intermediate authority) between the governed and the governors in this country is the organic Constitution of 1787.
 
Discussion of Above Principles
 
Begin with Laws of Nature: Existence; Reality (that's all there is)
 
A Critique of the Declaration of Independence- by Paul Wakfer.  
"Laws of Nature" being entirely sufficient since nature - reality - is all that exists.  [T]hey meant that all men have equal "rights"...  They are unalienable specifically because they are a necessary consequence of the reality of the nature of human beings - i.e. a part of existence. They are essential and logically unalienable because their not being true would be contradictory to the immutable structure of reality. Nor, being true of reality, can valid rights ever be removed. All that can be done is to "break" them - i.e. to not allow them to take their natural course and to be fulfilled. [Tyrannical rule is unnatural law]. Many people take "life" to include property and logically this has merit. [The pursuit of happiness] is logically derivable from the rights of Life, Liberty and Property. [Happiness] can rightly only be made by the individual himself under the circumstances of full freedom of life, liberty and property. [Unalienable rights do not come from government, but exist apart from government].
 
For self-preservation, man must first form a charter for government and thereafter delegate men --the government-- to execute that charter. By nature, man is the creator of government by charter. [Our Constitutional Republic is created by the People (or on their behalf) as a matter of nature.]
And when a man seriously reflects on the precariousness of human affairs, he will become convinced, that it is infinitely wiser and safer, to form a constitution of our own in a cool deliberate manner, while we have it in our power, than to trust such an interesting event to time and chance. ... First, they had a king, and then a form of government; whereas, the articles or charter of government, should be formed first, and men delegated to execute them afterwards... [men existed before kings and would thus be the creator of government, by nature]  
Common Sense by Thomas Paine (1776) http://www.constitution.org/tp/comsense.htm 
 
But as there is a peculiar delicacy, from whom, or in what manner, this business must first arise, and as it seems most agreeable and consistent, that it should come from some intermediate body between the governed and the governors, that is between the Congress and the people. ... [T]hat a charter is to be understood as a bond of solemn obligation [between the governed and the governors], which the whole enters into, to support the right of every separate part, whether of religion, personal freedom, or property... The members of Congress, Assemblies, or Conventions, by having had experience in national concerns, will be able and useful counsellors, and the whole, being empowered by the people will have a truly legal authority.  ...  A government of our own is our natural right: [emphasis added]  Thomas Paine, Id.
 
The organic Constitution (1787) is the natural stabilizing force --the "glue"-- that holds the People and Government together. If the Constitution-- the intermediate authority between the People and Government-- is not respected by both bodies, then Government ceases to exist causing the People to be left with anarchy. Anarchy isn't caused by the People's disobedience to court orders; it is caused by the court's disobedience to the Constitution. J.A.I.L. will prevent anarchy.
This is demonstratively to reduce all to anarchy, and so effectually to dissolve the government: for laws not being made for themselves, but to be, by their execution, the bonds of the society, to keep every part of the body politic in its due place and function; when that totally ceases, the government visibly ceases, and the people become a confused multitude, without order or connexion. Where there is no longer the administration of justice, for the securing of men's rights, nor any remaining power within the community to direct the force, [this is the need that J.A.I.L. will fulfill] or provide for the necessities of the public, there certainly is no government left. Where the laws cannot be executed, it is all one as if there were no laws; and a government without laws is, I suppose, a mystery in politics, unconceivable to human capacity, and inconsistent with human society. Of the Dissolution of Government by John Locke 
 
Analyzing Plaintiffs' Position
 
Plaintiffs of the WTP lawsuit relies upon the First Amendment, Right to Petition Government for Redress of Grievances.
 
--Redress = The act of receiving satisfaction for an injury sustained.
(Vol. 3 Bouvier's Law Dictionary, Third Rev. 8th Ed.)
 
--Grievance = An injury, injustice or wrong which gives ground for complaint because it is unjust and oppressive.
(Black's Law Dictionary, Rev. 4th Ed.)
 
--Remedy = The means employed to enforce a right or redress an injury.
(Vol. 3 Bouvier's Law Dictionary, Third Rev. 8th Ed.)
 
--Remedies for rights are ever favorably extended.
18 Viner's Abridgment.  (Black's Law Dictionary, Rev. 4th Ed.)
 
It is the federal courts, as guardian of our rights, which have the responsibility of seeing to it that a remedy is provided when sought by petition to government. If the court fails, then the People must act, for what good are rights without a remedy?
To say that our rights are protected by the Constitution is to rely on a piece of paper if we ignore the control of the powers of government exerted by the people. It is the people who are the ultimate guardians of the Constitution and the rights it guarantees...  [J.A.I.L. will fulfill this role]
 
A constitution alone cannot control government without republican forms, i.e., mechanisms that keep control of their representatives in the people's hands. [the function of J.A.I.L.]  Constitutions are not self-enforcing.... [W]ithout a sovereign people in control determining what shall be the constitution and the form of government functioning thereunder, that determination is made by the governors themselves. [i.e., usurpation of power]They function as a higher power, and that higher power then becomes the sovereign, dictating government and its policies to all others.  [J.A.I.L. will restore control to the sovereign People]
 
The only check upon arbitrary power is the People:
It is the law, and the law only, which can successfully resist the encroachments of despotism. In the absence of defined laws, and an independent judiciary to enforce them, the only check upon arbitrary power is popular insurrection;... http://www.svpvril.com/comcivlaw.html
 
There is no other mechanism in existence that can adequately and consistently protect our rights. Power quickly leads to corruption, and the power to protect the rights of the people can be trusted nowhere but with the people themselves. Therefore it is the responsibility of the citizens themselves to look after their own rights.
http://www.geocities.com/CapitolHill/7970/jefpco35.htm (supra)
 
Analyzing the WTP Court Ruling
 
The court relies on Smith v. Ark. State Highway Employees, Local 1315, 441 U.S. 463, 465 (1979) which states:

The First Amendment protects the right of an individual to speak freely, to advocate ideas, to associate with others, and to petition his government for redress of grievances. And it protects the right of associations to engage in advocacy on behalf of their members. NAACP v. Button, 371 U.S. 415 (1963); Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961). The government is prohibited from infringing upon these guarantees either by a general prohibition against certain forms of advocacy, NAACP v. Button, supra, or by imposing sanctions for the expression of particular views it opposes, e. g., Brandenburg v. Ohio, 395 U.S. 444 (1969); Garrison v. Louisiana, 379 U.S. 64 (1964). [emphasis in red added]

But the First Amendment is not a substitute for the national labor relations laws.... The public employee surely can associate and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so. See Pickering v. Board of Education, 391 U.S. 563, 574 -575 (1968); Shelton v. Tucker, 364 U.S. 479 (1960). But the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, [emphasis added] to recognize the association and bargain with it.   [ Footnote 2 ] See Hanover Township Federation of Teachers v. Hanover Community School Corp., 457 F.2d 456, 461 (CA7 1972), quoting Indianapolis Education Assn. v. Lewallen, 72 LRRM 2071, 2072 (CA7 1969) ("there is no constitutional duty to bargain collectively with an exclusive bargaining agent"). [emphasis added]
 
The context of the above case relates to "national labor relation laws," "bargaining collectively with an exclusive bargaining agent" --not the context of the instant WTP case. Dismissal of the instant case is based entirely on the court's misapplication of law to the different factual context of plaintiffs' case, and likewise the denial of their motion for leave to amend as "futile."  
 
The court also places federal tax laws above the Constitution, indicating that the First Amendment right to petition for redress of grievances does not apply to those laws.
 
By that ruling, Judge Sullivan contributes to the natural outcome of popular insurrection that is bound to arise, because it goes against the Laws of Nature. The judge has put himself at war with plaintiffs; and having disregarded material facts of plaintiffs' case, having deliberately violated plaintiffs' First Amendment right to Petition for Redress of Grievances, and having intentionally violated due process of law, under the specific provisions of J.A.I.L., the judge would not be entitled to immunity from liability in a subsequent jury trial if taken by complainant.
Whosoever uses force without right, as every one does in society, who does it without law, puts himself into a state of war with those against whom he so uses it; and in that state all former ties are cancelled, all other rights cease, and every one has a right to defend himself, and to resist the aggressor.
Of the Dissolution of Government by John Locke (supra)
 
The ruling is void and a nullity:
In Volume 16, American Jurisprudence, 177, we find the following: "The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.

"Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it. . . .

A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby.

No one is bound to obey an unconstitutional law and no courts are bound to enforce it. "
Our American Common Law by Howard Fisher and Dale Pond
 
The judge is a pretender of power:
If any agency of the Federal, State or County government, including the court, would act as if it were Principal, and Freeman, against its true Principal, the People, this would be an inversion of the legal principle of Sovereignty of the People. By so acting, any agency of the government, including the court, would be a pretender to the power, and as a pretender, its acts would be a nullity and would not exist, at Law; that is to say, that it would be null and void, and of no force and effect, at Law. That, in fact, it would not be government at all, but would be a private, criminal operation, imposing a rule of force, fraudulently pretending to be government, since, in this country, the only legitimate function of government is to protect the Rights and freedoms of the People. Such acts are not unlike the privately owned and operated Mafia who demands our money (taxes, fees, etc.) in exchange for them not committing violence against us or our property. Id.
~~~~~~~~~~~~~~~~~~~~~
 
J.A.I.L. is the means of self-defense for an oppressed people:
Must the people then always lay themselves open to the cruelty and rage of tyranny? Must they see their cities pillaged, and laid in ashes, their wives and children exposed to the tyrant's lust and fury, and themselves and families reduced by their king to ruin, and all the miseries of want and oppression, and yet sit still? Must men alone be debarred the common privilege of opposing force with force, which nature allows so freely to all other creatures for their preservation from injury? I answer: Self-defence is a part of the law of nature; nor can it be denied the community, even against the king himself...  John Locke, (supra.)
[written in the 1680s]

 
Bob Schulz, Chairman WTP, writes:

September 13, 2005

The Greatest Threat

http://www.givemeliberty.org/RTPLawsuit/Update2005-09-13.htm

There is no greater threat to Liberty in America, and consequently to Her strength and durability, than the loss of the ability of the People to hold their servant government accountable to the Principles of the Declaration of Independence, the Constitution and the Bill of Rights. 

With accountability, the cry for Freedom of each individual is maximized and the Rights of the governed are secured.  

Liberty is directly proportional to accountability. The more the People are able to hold government accountable to these essential principles, the greater their Liberty. 

The First Amendment provides a guarantee of the primary methods for exercising accountability.  Of crucial importance is the Petition clause, which unlike the other clauses (which enable personal expression, belief and association) brings the People and their government into a direct confrontation, and results in a public declaration of individual Liberty or governmental Tyranny.  

Petitioning the government for Redress of Grievances is nothing less than a peaceful rebellion of citizens seeking to keep their government in its proper place: as a servant of the People, created through a written Constitution for their service and protection. 

The Petition is the period at the end of the sentence on Liberty. It is the capstone Right, the ultimate peaceful deterrent to the abuse of power in government, a protection against the theft of Freedom from the People. 

Listen to the words of Jefferson: "On every government on Earth is some trace of human weakness, some germ of corruption and degeneracy, which cunning will discover, wickedness insensibly open, cultivate and improve. Every government degenerates when trusted to the rulers of the People alone. The People themselves therefore are its only safe repository." 

The Petition Clause was positioned for the People's use against an imperfect political process, a process that would favor the majority and those who possess power and influence. The Petition Clause is there to protect the individual from the whim of man and the whim of the majority. It offers protection against abuses of government that infringe upon the Fundamental Rights of both Individuals and the minority.  

The Petition is a necessary tool available to every individual, to remind and instruct those in government that their control is always, and ultimately, subject to the greater power and control of the Sovereign People that created it, bound -- not by the whims of men, but by the essential principles of Liberty. Petitions keep the government's ears open to its master's voice and they can sharpen popular attention to what the government is doing. 

The Founders knew that the unequal and unorganized citizens must have a practical, constitutional vehicle by which they could secure protection against those who would employ and enjoy political domination for their advantage. Indeed, it is this single principle - the Natural Right of popular sovereignty, as excised through the Right to Petition, that distinguishes our form of government from any that has arisen during the history of man. 

Confrontations between men and their governments have never been without anguish or agony. In our system of governance, the Petition is the fine line between peaceful and physical rebellion. Although Petitions may bring painful revelations and result in difficulties, the Right to Petition is the final check and balance that protects the People against the abuses of government - and insures the continuation of our Founding Principles.

That said, a government that restricts or infringes upon the Right to Petition commits a clear and grave error because it diminishes accountability and the full enjoyment of Rights, Freedoms and Liberty.

To outright deny the Right to Petition is to invite physical rebellion.  

Such is the recent decision http://www.givemeliberty.org/RTPLawsuit/CourtFilings/USDC-OrderDismiss08-31-05.pdf  by federal Judge Emmet Sullivan.
The decision is horrifying in its implications.  (see below)

In We The People et al., v. United States, et al., Sullivan, ruled that the government does not have to listen or respond to the People's Petitions for Redress of Grievances.  Without the Right to a response, the People do not have the Right to Petition. Popular Sovereignty thus becomes a quaint anachronism.

In essence, a federal District Court has declared its allegiance with Congress and the Executive, which have repeatedly ignored our Petitions. The decision effectively declares that our government is no longer accountable to We the People and that our servant government is unrestricted and untouchable in its pursuit of activities and agendas that are clearly prohibited by our Constitution.

Accountability contests between a free People and its servant government should always be of a respectful nature and require minimal encroachment or confrontation. 

Unfortunately, Judge Sullivan's decision is anything but respectful.

Any reasonable person would agree that the People's Right To Petition the government for Redress of constitutional torts includes the Right to an honest response. The Right to bring grievances before the government is of no value if the People do not have the Right to a respectful response.  Indeed, this is the essence of the Right.  

Listen to the words of Chief Justice Marshall in Marbury v. Madison in 1803, "It cannot be presumed, that any clause in the Constitution is intended to be without effect."  

Seldom has the Judiciary been so disrespectful of the Rights of People - probably not since the court decision in Plessey v. Ferguson, which held that "Black" people were "separate but equal" --  a patently absurd, political decision that was eventually overturned by Brown v. Board of Education. 

It's one thing for the political branches to deny the Right to Petition, it is an entirely different matter for a federal judge, standing as the Judiciary, to officially sanction the denial.  

As was the case with Martin Luther King, Jr. in Alabama and Ghandi in India, the enhancement of Liberty in any society must come from the efforts of the People. 

The history of man's struggle for Freedom teaches us to become involved citizens and to become Petitioners when the normal political process no longer meets our needs or fails us entirely.  

Petitioners are first class citizens who, having the courage of their convictions, act as free and thinking people. They rise and engage themselves as involved, responsible citizens to make change where change seems necessary.  

What must a Free People do after Petitioning the Executive and Legislative branches for stepping outside the boundaries drawn around their power by the war making, taxing, property, privacy, money and due process provisions of the Constitution and then witness their government turn a blind eye and a deaf ear to the Petitions?

What must a Free People do when, after petitioning the Judicial branch, a federal judge effectively declares the Petition clause "CANCELLED" --- declaring that this essential provision of the First Amendment "is without effect"?  

Under the present facts and circumstances, an extraordinary commitment to Freedom by the People is necessary. Personal activism must become a priority in order to stem the rising tide of tyranny. 

Accountability requires that the People hold their Principles above not only the consequences that may result from the Petition itself, but also the consequences that may result in attempting to hold government accountable.  

The lowest level of the federal Judiciary has now spoken and Judge Emmet Sullivan has assured his noteworthy place in history.  After having  profound questions of Constitutional Order and Natural Rights placed before him, he has ruled that our Right to Petition was intended to be without effect.

Working against despotism, and needing to complete the historical and legal Record of our Petition process for future generations, documenting our confrontation against modern tyranny, we will now move through the federal appeals process, starting with the U.S. Court of Appeals and, if necessary, the United States Supreme Court. We cannot allow it to be said that we did not complete our judicial remedies. 

It is now clear that within the coming months, we will be living witnesses to the further demise -- or resurrection -- of a nation where men once walked free, endowed with the Blessings of Devine Providence. 

My personal actions in the future are offered to encourage People to become involved as citizens and activists in the defense of Liberty when, as now, Freedom has come under attack, and the political and judicial processes designed to serve and protect us turn against us. 

Bob Schulz 
Chairman, WTP

(Attorney Mark Lane writes:)

STATEMENT BY MARK LANE

On December 15, 1791, the most important statement in American history became effective law to guide our nation. The Bill of Rights began with the First Amendment, and that one sentence commitment to We the People is in large measure what makes us unique. The First Amendment directs that:
            
"Congress shall make no law respecting the 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."

A number of ordinary Americans sought to exercise their right to petition the Government; they respectfully, imaginatively and persistently, over a period of years asked the Government to cite the law or regulations that constrained them to pay direct taxes on their labor or that authorized any number of other government activities that were well outside the limits of the Constitution. The Government refused to answer. 

These folks then filed an action in the United States District Court for the District of Columbia asking the Court to issue a declaration that the Government was constrained to respond to the numerous petitions.

Remarkably, the Government responded to the Court that the right to petition did not exist.  Well, you could send a letter if you wished but the Government was not required to respond or even read the petition. The government cited two cases that were plainly not applicable. It could not find an applicable case because, in fact, this case is a case of first impression, meaning that no court has ever considered this issue before.

Of course the courts are faced with serious consequences when they consider issues of this magnitude. If the Government was required to answer questions about the validity of income tax and if those answers were inadequate to support the present income tax assumptions, the Government would be denied access to funds to continue undeclared wars and other costly (and largely unconstitutional) measures.  The vast majority of funds the government receives are generated from taxes upon labor with a small portion being derived through taxes on corporations, and the corporate tax obligations are shrinking each year.

A decision by the Court in this case stating that circumstances had largely changed since 1791, that the Government's obligations have increased to an extent that those who drafted the First Amendment could not have expected and that, therefore, we cannot any longer give full faith and credit to the promise made to our people when the nation was founded, would have likely been a more accurate assertion by the judiciary of its position. It would not have been acceptable and it would have stated, in essence, that the First Amendment, or a least a substantial portion of it, had been abolished.

But courts work their magic by seeking to find some precedent when they make new law that is unprecedented. Here, the Court relied upon the two inapplicable cases that were cited by the Government.

In assessing the importance of this matter we must remember that whatever legal arguments have been posed or considered, the Court ultimately relied upon the Government's statement that the right to petition the Government for a redress of grievances no longer exists.

Of course, we intend to seek a review of that decision by a higher court. In the meantime, however, it is now the law of the land that your right to petition the Government has been abolished by the executive and judicial branches of the your Government.

Mark Lane


 
http://www.givemeliberty.org/RTPLawsuit/CourtFilings/USDC-OrderDismiss08-31-05.pdf
 
UNITED STATES DISTRICT  COURT

FOR THE DISTRICT OF  COLUMBIA

Civil Action No.  04-1211   (EGS)
_____________________________

WE  THE PEOPLE, et al., )

Plaintiffs,  )

v. )
 
UNITED STATES,  et al., )

Defendants.  )
__________________________________)

OPINION  & ORDER

Plaintiff We the People Foundation for  Constitutional

Education, Inc. and several individually-named  plaintiffs,

including pro se plaintiff Robert L. Schultz, bring  this action

against the United States of America, the U.S.  Treasury

Department, the Internal Revenue Service, and the U.S.  Department

of Justice. Plaintiffs' Complaint "arises from the  failure of

the President of the United States and his Attorney  General and

his Secretary of the Treasury and his Commissioner  of the

Internal Revenue Service, and the failure of the United  States

Congress, to properly respond to Plaintiffs' Petitions  for

Redress of Grievances against their government,  namely:

grievances relating to violations of the U.S.  Constitution's war

powers, taxing, money, and "privacy"  clauses." See Plaintiffs'

Amended Complaint ("Compl.") at 66.  Plaintiffs also allege that

the Executive Branch has retaliated  against plaintiffs for

petitioning the government and for  "Peaceably Assembling and

Associating with other individuals  under the umbrella of the We

the People Foundation for  Constitutional Education and the We the

Case 1:04-cv-01211-EGS  Document 28 Filed 08/31/2005 Page 1 of  7

2

People Congress." Id.

Pending  before the Court are defendants' Motion to Dismiss

and  plaintiffs' Motion to Amend the Complaint. Upon

consideration  of the motions, the oppositions thereto, and the

replies in  support thereof, and for the following reasons, it  is

hereby

ORDERED that the defendants' Motion to  Dismiss is GRANTED.

It is further

ORDERED that  the plaintiffs' Motion for Leave to File

Amended Complaint is  DENIED.

I. Motion to Dismiss

A. Standard of  Review

A motion to dismiss for failure to state a claim  under

Federal Rule of Civil Procedure 12(b)(6) should be  granted when

it appears "beyond doubt" that there is no set of  facts that

plaintiffs can prove that will entitle them to  relief. See

Sparrow v. United Air Lines, Inc., 216 F.3d 1111,  1114 (D.C. Cir.

2000). "Accordingly, at this stage in the  proceedings, the Court

must accept as true all of the  complaint's factual allegations."

Johnson v. District of  Columbia, 190 F. Supp. 2d 34, 39  (D.D.C.

2002).

B. Discussion

The  First Amendment provides that "Congress shall make no

law ...  abridging ... the right of the people peaceably to

Case  1:04-cv-01211-EGS Document 28 Filed 08/31/2005 Page 2 of  7

3

assemble, and to petition the Government for  a redress of

grievances." U.S. Const. Amend. I. Plaintiffs  contend that they

therefore have a constitutional right to a  response to the

petitions they have filed with the various  defendants, and that

defendants have committed constitutional  torts against plaintiffs

in failing to respond to their  petitions. See Pl. Opposition to

Def. Motion to Dismiss ("Pl.  Opp.") at 9-10. The Supreme Court,

however, has held that "the  First Amendment does not impose any

affirmative obligation on  the government to listen, to respond

or, in this context, to  recognize the association and bargain

with it." See Smith v.  Ark. State Highway Employees, Local 1315,

441 U.S. 463, 465  (1979). Plaintiffs' claims that the defendants

are obligated to  "properly" respond to plaintiffs' petitions

shall thus be  dismissed for failure to state a claim upon which

relief may be  granted.

Plaintiffs' claims based on the "retaliatory actions"  the

defendants have allegedly taken against plaintiffs for  exercising

their First Amendment rights are similarly flawed.  The

governmental actions plaintiffs complain of include  sending

plaintiffs threatening letters, placing liens on their  property,

raiding plaintiffs' homes or offices, and forcing  plaintiffs to

appear before administrative or other tribunals.  Compl. at 48.

It appears that because plaintiffs have not  received responses to

their petitions, they have "decided to  give further expression to

their Rights under the First  Amendment to Speech, Assembly and

Case 1:04-cv-01211-EGS  Document 28 Filed 08/31/2005 Page 3 of  7

4

Petition, by not withholding and turning  over to government

direct, un-apportioned taxes on Plaintiffs'  labor - money earned

in direct exchange for their labor (not to  be confused with money

"derived from" labor)." Pl. Opp. at  30-31.

Congress has provided methods for challenging the  legality

of such enforcement actions and to prevent  governmental abuse.

For example, taxpayers have the right to  notice and a hearing

before the federal government can file a  notice of a tax lien or

levy. 26 U.S.C. 6320, 6330. Citizens  have a right of action

for wrongful levies or other collection  actions and for wrongful

failure to release liens. Id. at   7426(a). And taxpayers may

sue to recover money erroneously or  illegally assessed or

collected by the government. Id. at   7422(a).

Plaintiffs do not, however, have a First Amendment  right to

withhold money owed to the government and to avoid  governmental

enforcement actions because they object to  government policy.

See, e.g., Adams v. Comm'r, 170 F.3d 173,  182 (3d Cir.

1999)("Plaintiffs engaging in civil disobedience  through tax

protests must pay the penalties incurred as a  result of engaging

in such disobedience."); United States v.  Rowlee, 899 F.2d 1275,

1279 (2d Cir. 1990)("The consensus of  this and every other

circuit is that liability for a false or  fraudulent return cannot

be avoided by evoking the First  Amendment[.]")(citing cases);

United States v. Kelley, 864 F.2d  569, 576-77 (7 Cir.), cert. th

denied, 493 U.S. 811  (1989)(actions that constitute more than

Case 1:04-cv-01211-EGS  Document 28 Filed 08/31/2005 Page 4 of 7

5

mere  advocacy not protected by the First Amendment); Welch v.

United  States, 750 F.2d 1101, 1108 (1 Cir. 1985) st

("[N]oncompliance  with the federal tax laws is conduct that is

afforded no  protection under the First Amendment[.]"); United

States v.  Ness, 652 F.2d 890, 892 (9 Cir.), cert. denied, 454 th

U.S.  1126 (1981)("Tax violations are not a protected form  of

political dissent."); United States v. Malinowski, 472 F.2d  850,

857 (3d Cir. 1973)("To urge that violating a federal law  which

has a direct or indirect bearing on the object of protest  is

conduct protected by the First Amendment is to endorse a  concept

having no precedent in any form of organized society  where

standards of societal conduct are promulgated by  some

authority.").

Moreover, the injunctive  relief that plaintiffs seek, that

is, "a temporary injunction  against the United States Internal

Revenue Service and the  Department of Justice and any other

agency of the United States  that arguably may act in this matter

under color of law, from  taking any further retaliatory actions

against the named  plaintiffs in this proceeding," is clearly

barred by the  Anti-Injunction Act, 26 U.S.C. 7421. See, e.g.,

Foodservice  & Lodging Institute, Inc. v. Regan, 809 F.2d 842, 844

(D.C.  Cir. 1987)("The Anti-Injunction Act provides that 'no suit

for  the purpose of restraining the assessment or collection of

any  tax shall be maintained in any court by any person.' 26

U.S.C.  7421(a)(1982). The Declaratory Judgement Act provides

Case  1:04-cv-01211-EGS Document 28 Filed 08/31/2005 Page 5 of  7

6

that '[i]n a case of actual controversy  within its jurisdiction,

except with respect to Federal taxes  ... any court of the United

States ... may declare the rights  and other legal relations of

any interested party seeking such  declaration, whether or not

further relief is or could be  sought.' 28 U.S.C. 2201(a)(Supp.

III 1985). By their terms,  these statutes clearly bar the

appellant's claims for  injunctive and declaratory relief as to

the [challenged IRS  regulations].").

For the above cited reasons, plaintiffs'  complaint must be

dismissed for failure to state a claim,  pursuant to Fed. R. Civ.

P. 12(b)(6).

II. Motion  for Leave to File Amended Complaint

In light of the preceding  discussion and the Court's ruling

granting the defendants'  motion to dismiss the complaint,

plaintiffs' motion for leave  to amend their complaint to add

additional defendants,  including the President of the United

States, the United States  Congress, the Commissioner of the

Internal Revenue Service and  others, as well as adding 1,600

plaintiffs, shall be DENIED as  futile. See James Madison Ltd. v.

Ludwig, 82 F.3d 1085, 1099  ("Courts may deny a motion to amend a

complaint as futile ...  if the proposed claim would not survive a

motion to  dismiss.")(citations omitted); see also Nat'l Wrestling

Coaches  Ass'n v. U.S. Dept. of Educ., 263 F. Supp. 2d 82,  103-04
(2003), aff'd, 366 F.3d 1047 (D.C. Cir. 2004), cert.  denied, 125

S.Ct. 2537 (2005)(citing and discussing cases  supporting a

Case 1:04-cv-01211-EGS Document 28 Filed  08/31/2005 Page 6 of 7

7

district court's  discretion pursuant to Fed. R. Civ. P. 15(a) to

deny a motion  for leave to amend complaint on the grounds  of

futility).

III. Conclusion

For  the reasons set forth herein, it is hereby ORDERED that

the  defendants' motion to dismiss the complaint is GRANTED  and

plaintiffs' motion for leave to amend their complaint is  DENIED.

An appropriate order accompanies this Opinion &  Order.

Signed: EMMET G. SULLIVAN

U.S. District  Judge

August 31, 2005

Case 1:04-cv-01211-EGS  Document 28 Filed 08/31/2005 Page 7 of 7

 


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