No.  04 - 519 

=========================================

 

In The

 

Supreme Court of the United States

 

_____________________

 

 

UDO BIRNBAUM

                                                                                Petitioner

v.

 

THE LAW OFFICES OF G. DAVID WESTFALL, P.C.,

 G. DAVID WESTFALL, CHRISTINA WESTFALL, STEFANI PODVIN

Respondents

 

_____________________

 

 

On Petition For Writ Of Certiorari

To the Supreme Court of Texas

 

_____________________

 

PETITION FOR WRIT OF CERTIORARI

_____________________

 

UDO BIRNBAUM, PRO SE

540 VZCR 2916

Eustace, TX 75124

(903) 479-3929

QUESTIONS PRESENTED

 

1.      Whether a person without a lawyer, filing a pleading in a Texas court under U.S.C. § 1964(c), ("civil RICO"), can be sanctioned as much as $62,885 merely because the evidence is found to be insufficient to show his claim.

 

2.      Whether such person's civil RICO claim can be kept from the jury, and the TRIAL JUDGE himself just FIND that the evidence does NOT indeed show such civil RICO claim as pleaded, and impose such sanction of as much as $62,885?

 

3.      Whether the Texas Supreme Court in upholding such $62,885 sanction sets a dangerous precedent that is in conflict with the purpose of the civil RICO statute.

 

4.        Whether the Texas judges upholding such $62,885 sanction knew that they were acting in violation of the Constitution, yet did it anyway, and whether such conduct rises to the level of judicial terrorism and a threat to America.

 

 

THE PARTIES

 

Udo Birnbaum                                Udo Birnbaum, Pro Se

            Petitioner                          540 VZCR 2916

                                                      Eustace, TX 75124

 

The Law Offices of                         Frank C. Fleming

    G. David Westfall, P.C.              6611 Hillcrest Ave. #305

                                                      Dallas, TX 75205

 

G. David Westfall                           Frank C. Fleming                           

Christina Westfall                            Frank C. Fleming

 

Stefani (Westfall) Podvin                 Frank C. Fleming

            Respondents         

 

TABLE OF CONTENTS

 

QUESTIONS PRESENTED   .  .  .  .  .  .  .  .  .  .  .  .  .  .  i

 

THE PARTIES   .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  ii

 

TABLE OF CONTENTS     .  .  .  .  .  .  .  .  .  .  .    .  .  .  iii

 

TABLE OF AUTHORITIES  .  .  .  .  .  .  .  .  .  .  .  .  .  .  iv

 

OPINIONS BELOW    .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  1

 

JURISDICTION   .  .  . .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  1

 

CONSTITUTIONAL PROVISIONS.  .  .  .  .  .  .  .  .  .  .  1

 

STATUTORY PROVISIONS  .  .  .  .  .  .  .  .  .  .  .  .  .  .  2

 

STATEMENT OF THE CASE    .  .  .  .  .  .  .  .  .  .  .  .  .  3

            Introduction .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  1

            Facts Material    .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  4

The Proceedings Below    .  .  .  .  .  .  .  .  .  .  .  .  .  5

 

REASONS FOR GRANTING CERTIORARI

 

            QUESTION 1   .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  20

 

            QUESTION 2   .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  23

 

            QUESTION 3   .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  24

 

            QUESTION 4   .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  25

 

CONCLUSION    .  .  . .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  25

 

 

TABLE OF CONTENTS -Continued

 

APPENDIX

 

Appendix A

Summary judgment on civil RICO claim   .  .  .  .  .  .  App. 1

 

Appendix B

Order on Motions for Sanctions   .  .  .  .  .  .  .  .  .  .  .  App. 2

 

Appendix C

Opinion of the Court of Appeals     .  .  .  .  .  .  .  .  .  .  App. 4

 

Appendix D

Web docket - Texas Supreme Court    .  .  .  .  .  .  .  .  App. 13

 

Appendix E

$125,770 Sanction - on a DEAD case  .   .   .  .  .  .  .  App. 14  

 

Appendix F

WARNING -- "you have the keys"     .   .   .   .   .   .   App. 14

 

 

 

 

 

 

TABLE OF AUTHORITIES

 

Birnbaum v. Law Offices of G. David Westfall,          1, 26

      120 S.W.3d 470, 477 (2003)

 

Dorothy Strange v. Continental Casualty Company,                  26

      Texas Fifth No. 05-03-00348-CV (2004)

 

Estee Lauder, Inc. v. Harco Graphics, Inc.,                    23

      D.C.N.Y.1983, 558 F.Supp.83     

 

Hicks v. Feiock, 485 U.S. 624 (1988)  .   .   .   .   .     14, 19

 

Rotella v. Wood et al.,   .   .   .   .   .   .   .    6, 12, 15, 17, 24

      528 U.S. 549 (2000)

 

Rutan v. Rupublican Party of Illinois,   .   .  .   .   14, 19, 22

      497 U.S. 62 (1990)

 

Tafflin v. Levit,   .   .   .   .   .   .   .   .   .   .   .   .   .   1, 2, 4, 6

      493 U.S. 455(1990)

 

United Mine Workers v. Bagwell,   .   .   .   .   .   .   .   .     20

      512 U.S. 821 (1994)

 

CONSTITUTIONAL PROVISIONS

 

Amendment I      .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .   1

Amendment V    .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .    1

Amendment XIV   .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .    2

 

FEDERAL STATUTES

 

18 U.S.C. § 1961 et seq. ("RICO")   .  .  .  .  .  .  .  .  .  .  .    2

18 U.S.C. § 1962(c)  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .    2

18 U.S.C. § 1964(c) ("civil RICO")   .  .  .  .  .    2, 3, 4, 5, 6,

                                                                          11, 17, 20, 24

OPINIONS BELOW

      The Texas Fifth Circuit Court of Appeals opinion is published as Birnbaum v. Law Offices of G. David Westfall, P.C., 120 S.W.3d 470, 476 (Tex. App.-Dallas 2003, pet. Filed). Documents in the trial court are unpublished. 

 

JURISDICTION

      Petitioner seeks review of a certain $62,885 sanction imposed by a Texas district court because the evidence was found not to support his claim under 18 U.S.C. § 1964(c), "civil RICO".

      The Texas Supreme Court last denied the appeal for rehearing on May 21, 2004  (App. 13). This petition was filed within ninety days after that date. This court's jurisdiction is invoked under 28 U.S.C. § 1254(1).

      The state district court had jurisdiction over civil RICO under this court's Tafflin v. Levitt, 493 U.S. 455 (1990). Constitutional and due process issues were timely raised in the trial, appeal, and state supreme court as indicated below.

 

CONSTITUTIONAL PROVISIONS

Amendment I.   Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

 

Amendment V.  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

 

Amendment XIV, Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

STATUTORY PROVISIONS

18 U.S.C. § 1961 et seq. ("RICO") provides, in relevant part:

 

18 U.S.C. § 1962(c):

"It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt."

 

18 U.S.C. § 1964(c), "civil RICO":

"Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee."

 

Note:  State courts have concurrent jurisdiction to consider civil claims arising under RICO. Tafflin v. Levitt, 493 U.S. 455 (1990)

STATEMENT OF THE CASE

 

Introduction

      This petition is about FREE SPEECH, Fifth Amendment DUE PROCESS, and STATUTORY LAW.

      Petitioner Birnbaum seeks relief for himself, and others similarly situated, to be free from fear of UNLAWFUL punishment of as much as $62,885 for representing themselves in Texas courts.

      Specifically at issue in this petition is the following sanction (Appendix B):

 

THE COURT:  "In assessing the [$62,885] sanctions, the Court has taken into consideration that although Mr. Birnbaum may be well-intentioned and may believe that he had some kind of real claim as far as RICO there was nothing presented to the court in any of the proceedings since I've been involved that suggest he had any basis in law or in fact to support his suits against the individuals, and I think -- can find that such sanctions as I've determined are appropriate".

Transcript, close of Sanctions Hearing, July 30, 2002. (emphasis added)

 

      Specifically, Birnbaum seeks relief to be free to make claims and defenses under 18 U.S.C. § 1964(c) ("civil RICO") when one is fraudulently sued in a Texas court.

 

      Filing a lawsuit is constitutionally protected conduct. Unconditional punishment, for a completed act, is criminal in nature, requiring full criminal process, including a finding of "beyond a reasonable doubt", by a jury. Civil RICO is statutory law, and state courts have jurisdiction over civil RICO under this court's Tafflin v. Levitt, 493 U.S. 455 (1990)

 

      This $62,885 sanction judgment is NOT a matter of an erroneous ruling or finding by a Texas court, NOT with all the briefing and petitions for rehearing that went to the Texas courts, as shown below, but an indication of a more systemic problem regarding constitutional rights and due process, rising to the level of an "important issue of law".

 

In essence, the Texas 294th District Court, the Texas Fifth Court of Appeals, and the Texas Supreme Court, using various Texas legal procedures and doctrines, have decided an important federal question in a way that conflicts with relevant decisions of this Court.  

 

Facts material

      Petitioner Birnbaum was sued in the Texas 294th District Court of Van Zandt County by a The Law Offices of G. David Westfall, P.C. ("Law Office") claiming $38,121.10 "worth" of legal services in bringing suit under the anti-racketeering statute 18 U.S.C. § 1964(c) ("civil RICO") against ten defendants (including the very district judge in whose court they brought this case!), two senior judges, an ex-district judge, two lawyers, and assorted court personnel.

 

      The civil RICO suit alleged a scheme of condoning frivolous lawsuits, such as the one where Birnbaum had been sued because BEAVERS had built a dam on his farm.

 

      Judges are of course for all practical purposes immune from suit for damages, yet the lawyer had written to Birnbaum, "you have a very good case". Now the lawyer was claiming $38,121.10 worth of "legal services" performed on "open account", when there was NO open account at all, only a $20,000 prepaid non-refundable retainer agreement "for the purpose of insuring our availability", and "We reserve the right to terminate our attorney client relationship for any of the following reasons:  1) Your non-payment of fees or costs", etc., clearly NOT in the category of an "open account", with the required elements of sales and delivery.

 

Petitioner Birnbaum answered by denying such alleged "open account" under oath, asserted defenses of FRAUD, counter-claimed under the Texas Deceptive Trade Practices Act (DTPA), and made cross and third party claims under 18 U.S.C. § 1964(c) ("civil RICO") against three (3) persons associated with the "Law Office" (G. David Westfall, Christina Westfall, and Stefani [Westfall] Podvin, "The Westfalls"), and asked for trial by jury.

 

Birnbaum also moved for APPOINTMENT OF AN AUDITOR per RCP Rule 172 to investigate and report on the alleged OPEN ACCOUNT  to show that there existed no open account at all, nor systematic records, etc. as claimed, but only a $20,000 prepaid non-refundable retainer paid to lawyer G. David Westfall.

 

The Proceedings Below

      (When the federal questions were raised, the manner, disposition, and quotations)

 

Supreme Court Rule 14(1)(g)(i):

  "If review of a state-court judgment is sought, specification of the stage in the proceedings, both in the court of first instance and in the appellate courts, when the federal questions sought to be reviewed were raised; the method or manner of raising them and the way in which they were passed on by those courts; and pertinent quotations of specific portions of the record or summary thereof, with specific reference to the places in the record where the matter appear (e.g. court opinion, ruling on exception, portion of court's charge and exception thereto, assignment of error), so as to show that the federal question was timely and properly raised and that this Court has jurisdiction to review the judgment on a writ of certiorari."

 

      Birnbaum first raised a federal statutory issue by the very nature of his counter-claim under 18 U.S.C. § 1964(c), "civil RICO" per his right to do so in state court per this court's Tafflin v. Levitt, 493 U.S. 455 (1990).

      As for FIRST AMENDMENT and DUE PROCESS issues, below is just a partial list of when and in what manner these constitutional issues continued to be raised. The below are DIRECT QUOTES from the indicated documents, all emphasis as in original:

 

Federal questions raised in the state trial court

 

Udo Birnbaum's Amended Third Party Plaintiff Civil RICO Claim --July 11, 2001

Issue:  FIRST AMENDMENT, DUE PROCESS, and STATUTORY FEDERAL LAW ("civil RICO"):

"Birnbaum, in asserting his Civil RICO claim, is in conformance with the Congressional intent of Civil RICO as established by the Supreme Court of the United States in Rotella v. Wood et al. (2000), i.e. a "congressional objective [in enacting Civil RICO] of encouraging civil litigation not merely to compensate victims but also to turn them into private attorneys general, supplementing Government efforts by undertaking litigation in the public good".

 Disposition: DENIED.  $62,885 FINE. (App. B)

      The trial judge would not let Birnbaum show his claim to the jury, ruled that the evidence did NOT show a civil RICO  claim, issued summary judgment, ruled Birnbaum "well-intentioned", and sanctioned Birnbaum $62,885.  (See quotation above)
 

 

Supplement To Motion For Appointment Of Auditor - Jan. 8, 2001 

Issue:  DUE PROCESS

"Defendant [Birnbaum] moves this Court for appointment of an auditor under Rule 172 RCP (Texas Rules of Civil Procedure) to make a finding for the Court upon the claim of a pattern of fraudulent accounting practices by Plaintiff, The Law Offices of G. David Westfall, P.C."

Disposition: Motion DENIED without explanation.
 

 

Petition for Writ of Mandamus - to appoint auditor, to permit civil RICO claim -- Nov. 7, 2001, Texas 12th Court of Appeals, No. 12-01-00281-CV

Issue:  DUE PROCESS, STATUTORY LAW (right to make "civil RICO" claim)

The issues as presented to the Texas  12th Court of Appeals:

"ISSUE 1:  Whether failure to appoint an auditor per Rule 172 RCP is a violation of duty imposed by law that cannot be remedied by appeal"

"ISSUE 2:   Whether not following summary judgment rules is a violation of duty imposed by law that cannot be remedied by appeal"

"ISSUE 3:  Whether the judge weighing the summary judgment evidence is a violation of duty imposed by law that cannot be remedied by appeal"

"ISSUE 4:  Whether the judge granting "RICO Relief" is a violation of duty that precludes defendant Birnbaum from presenting the jury with a viable and timely alternative to Plaintiff's arguments as to what the evidence really means"

"ISSUE 5:  Whether the judge not providing due process is a violation of duty imposed by law that cannot be remedied by appeal"

Disposition:  DENIED without explanation.
 

 

Position Supporting Recusal of Judge Banner -- Sept. 30, 2001 - Motion to Recuse "visiting" Judge

Issue:  FIRST AMENDMENT, DUE PROCESS, STATUTORY LAW ("civil RICO")

"In any case, I am entitled to a judge who will abide by the law of the land and who does not give the perception of being fundamentally opposed to civil RICO.  I ask for Judge Banner's removal from this cause, to be replaced by an unbiased judge, before I am unlawfully further entangled in this Court."

     "It is time for this Court, under the circumstances of this case, to call on the Justice Department to bring an end to the Westfall Bunch's racketeering and their hijacking of the judicial process in this Court."

Disposition:  Motion DENIED. Birnbaum ultimately gets FINED $62,885 by this judge. (App. B)
 

 

Birnbaum's Response To [The Westfalls'] Motion For Sanctions -- May 10, 2002.

Issue:  FIRST AMENDMENT, DUE PROCESS, STATUTORY LAW ("civil RICO")

"COMES NOW Udo Birnbaum in response to the "facts" and "actions" issues raised by [The Westfalls'] Motion for Sanctions, to show that justice requires that these issues be determined by the U.S. Justice Department, because this Court has no investigative capability."

"Birnbaum has a First Amendment Right to speak out against public corruption as he has seen it, without fear of retaliation masquerading as "sanctions". Another issue for the U.S. Justice Department."

Disposition:  Birnbaum gets FINED  $62,885. (App. B)
 

 

Closing Pleading in Writing -- July 30, 2002

Filed, recited at hearing on Motions for Sanctions.

Issue:  FIRST AMENDMENT, DUE PROCESS

"It is now clear to me that the entire matters I have been subjected to in this Court is retaliation by official oppression for having spoken out on an issue of great public importance, namely rampant corruption and lawlessness in Judge Tommy C. Wallace's 294^th District Court."

Disposition:  Judge "weighs" the evidence, finds Birnbaum "well-intentioned", yet $62,885 FINE against Birnbaum
 

 

Motion To Reconsider The $62,885 'frivolous lawsuit' Sanction -- Aug. 19, 2002

Issue:  FIRST AMENDMENT, DUE PROCESS, STATUTORY LAW ("civil RICO")

"In my responses [to the motion for sanctions] I pleaded that "Only the U.S. Justice Department can determine whether the Westfalls were indeed running a racketeering enterprise … …  as Birnbaum complains", and that "Birnbaum has a First Amendment right to speak out against public corruption as he sees it, without fear of retaliation masquerading as 'sanctions'."

     "This Court was no more entitled to weigh the evidence to make a finding that there was no RICO violation, and sanction me, than it was entitled to find that there was a RICO violation, and throw the Westfalls in jail. The Court has no investigative capability. Hence my call for the U.S. Justice Department."

     "I am being punished for the sins of this entire proceeding. If, after reconsideration, this Court still feels that what I did was so sanctionable, please advise me as to other views I am also not allowed to voice, whether to this Court, on Appeal, or elsewhere, lest I unknowingly risk being subjected to further sanctions."

Disposition: NO RESPONSE from the court.
 

 

Request For Findings Of Fact And Conclusions Of Law -- filed Sept. 3, 2002. Emphasis as in original.

Issue:  FIRST AMENDMENT, DUE PROCESS, STATUTORY LAW ("civil RICO")

"WHEREFORE, Udo Birnbaum requests the Court to file findings of fact and conclusions of law as to exactly what the Court found that he did that was so wrong as to incur a $62.885.00 "frivolous lawsuit" sanction, when he did not even bring this suit, and specifically upon the central issue regarding this Judgment ("racketeering" vs. "frivolous") as alleged to this Court in the Westfalls' Motion for Sanctions and in my Response thereto, i.e. whether:

           

"Regarding my civil RICO claim and cross-claim, and absent a finding of fact by a jury (that I had indeed not been damaged by reason of a RICO violation), what conclusions of law, if any, and what findings of fact, if any, this Court made to adjudicate the sanction issue of fact, i.e. whether there was a bona fide "pattern of racketeering activity" by the Westfalls, just as I was trying to show, or whether my claims were indeed "frivolous".

"(plain English: How did Your Honor arrive at a finding on this central issue, an issue I had asked to be resolved by jury?)"

 

"This is the second suit in which I have been run over by lawyers and judges in this Court, and I have come to recognize the retaliation by Official Oppression that has come upon me for having spoken out on corruption in Tommy Wallace's 294^th District Court, as I pleaded at the sanction hearing "trial" of July 30, 2002.

"I did not bring this suit!  I did not bring the other one either!"

Disposition:  NO RESPONSE from the judge.
 

 

Notice of Past Due findings of Fact and Conclusions of Law -- Oct. 1, 2002

Issue:  FIRST AMENDMENT, DUE PROCESS, STATUTORY LAW ("civil RICO")

"Your Honor, please let the record know what findings of fact, and conclusions of law you made to come up with the two judgments you awarded against me in this case:

 

"1.  How, upon a pleading of an unpaid open account, and absent a finding to you by an Auditor under RCP Rule 172 regarding such claimed unpaid open account, and absent a finding by a jury as to the state of the account, what findings of fact, and what conclusions of law did you make to award a judgment totaling $59,280.66 against me upon such pleading, an issue I had asked to be resolved by jury?"

 

"2.  How upon my cross and counter claim under 18 U.S.C. § 1961, et seq. ("civil RICO"), against three (3) persons, and having dismissed such three (3) persons on November 13, 2001, what findings of fact and what conclusions of law did you now make, on August 21, 2002, so as to entitle these dismissed parties to a $62,885.00 second judgment against me, in the same case, on an issue I had asked to be resolved by jury?"

 

Disposition:  NO RESPONSE from the judge

               

                       

Federal questions raised in the appeals court

       Texas Fifth Court of Appeals No. 05-02-01683-CV.

 

Brief for Appellant -- April 22, 2003

Issue:  FIRST AMENDMENT, DUE PROCESS, STATUTORY LAW ("civil RICO")

     "As shown above, not only the two judgments, but the entire process was lawless. If there is a problem that any judge has in complying with the objectives of civil RICO as interpreted by the Supreme Court of the United States ("private attorneys general")[1], he has the right to recuse himself.  If there is a judge who is concerned about being the one opening up Pandora's box in Texas district courts with civil RICO, because the Texas Rules of Civil Procedure do not allow early dismissal by a rule such as federal rule 12(b)(6) for "failure to state a claim", let him recuse himself.

     "But a trial judge does not have the right to take it out on me for following the Supreme Court's urging that victims injured "by reason of a violation" of RICO file civil RICO claims.  I am entitled to a new trial by a judge who will abide by the law and the rules of procedure."

     "Assessing a [criminal] punishment of $62,255 for having made a civil RICO defense is NOT "OBJECTIVELY REASONABLE", and especially so in light of a finding that "Mr. Birnbaum may be well-intentioned and may believe that he had some kind of real claim".

Disposition:  The appeals court DID NOT TOUCH THE ISSUE OF UNLAWFUL.

 

      The appeals court DID find that, "We agree with Birnbaum that the trial court's order awards sanctions without stating the basis for the award, and therefore does not meet the requirements of Rule 13", and then goes on that "Birnbaum did not bring either of his complaints about the sanctions order to the attention of the trial judge."

      NOT TRUE, as indicated by the various documents in this petition. Besides if the sanction order "does not meet the requirements", that makes it UNLAWFUL, PERIOD.

(See App. C, COA Opinion, section titled "Sanction Order")
 

 

Reply Brief - July 16, 2003

Issue:  FIRST AMENDMENT, DUE PROCESS, STATUTORY LAW ("civil RICO")

"I am being punished for the sins of this entire proceeding. If, after reconsideration, this Court still feels that what I did was so sanctionable, please advise me as to other views I am also not allowed to voice, whether to this Court, on Appeal, or elsewhere, lest I unknowingly risk being subjected to further sanctions [for being a whistle-blower"

 

"I petition this Appeals Court to free me from the TWO unlawful judgments upon me, to reverse the unlawful "RICO relief" summary judgment, and to remand the case back to the trial court, with a recusal of Judge Paul Banner, and in the alternative, very strong guidance as to due process in a civil RICO environment."

 

"This is really a very simple case once one recognizes the pattern of FRAUD from start to finish, intrinsic and extrinsic, turning into retaliation by official oppression and unlawful judgments against pro se Birnbaum for having made a civil racketeering ("civil RICO") defense against a fraudulent suit by lawyers.

Disposition:  Lengthy appeals court opinion, but NO finding on the issue of  UNLAWFUL. (App. C)
 

 

Petition for Rehearing En Banc -- Nov. 12, 2003

Issue:  FIRST AMENDMENT, DUE PROCESS, STATUTORY LAW ("civil RICO")

"Issues Presented in this Petition for Rehearing En Banc

1.   Whether the Panel's Opinion is devoid of Constitutional considerations

·         It is "clearly established that filing a lawsuit was constitutionally protected conduct "  Rutan , 497 U.S. 62

2.   Whether the Panel micro-procedurally upholds a patently unlawful $62,000 punitive sanction for having made a civil RICO (civil racketeering) pleading

·         "criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of criminal proceedings, including the requirement that the offense be proved beyond a reasonable doubt.” Hicks v. Feiock, U.S. Supreme Court, 485 U.S. 624 (1988) 

3.   Whether the Panel micro-procedurally upholds a $59,000 judgment that does not conform to the pleadings and the verdict.

·         It does not conform to the pleadings and the verdict (RCP Rule 301. Judgments) 

 

"PRAYER and Conclusion

      "The Panel's analysis is purely procedural, and devoid of Constitutional considerations.  Nowhere does the Panel address my key point that assessing a punitive sanction for having made a civil RICO pleading violates the LAW.

      "Through the prism of this UNLAWFUL judgment, it is also abundantly clear that the entire proceedings in the trial court were also unlawful, and that the TWO (2) judgments against me should and must be officially declared null and void. 

      "Assessing a [criminal] punishment of $62,255 for having made a civil RICO defense is NOT OBJECTIVELY REASONABLE either, and especially so in light of a finding that:

 "Mr. Birnbaum may be well-intentioned and may believe that he had some kind of real claim as far as RICO there was nothing presented to the court in any of the proceedings since I've been involved that suggest he had any basis in law or in fact to support his [civil RICO] suits against the individuals"  (all completed acts, making the sanction purely punitive)

 

      "Also, the Panel's analysis is out of step with the U.S. Supreme Court:

"[a] Congressional objective [in enacting civil RICO with treble damages] of encouraging civil litigation not merely to compensate victims but also to turn them into private attorneys general, supplementing Government efforts by undertaking litigation in the public good". Rotella v. Wood et al., 528 U.S. 549 (2000)

 

Disposition:  Motion for Rehearing En Banc DENIED 

 

 

Federal questions in the Texas Supreme Court

Petition to Texas Supreme Court No. 04-0078

Note:  Several original references to exhibits removed. Other references updated to reflect appendix with this petition. Emphasis as in the original documents.

 

Petition for Review -- Jan. 22, 2004

Issue:  FIRST AMENDMENT, DUE PROCESS, STATUTORY LAW ("civil RICO")

      "Question presented:

"Whether the precedent of a Texas court actually assessing a FINE of $62,000 (or ANY fine), merely because the evidence did NOT prove a person's claim under   18 U.S.C. § 1964(c) "civil RICO", defeats the stated purpose of the [civil RICO] statute, and offends the Constitution"

"clearly established that filing a lawsuit was constitutionally protected conduct."  Rutan v. Republican Party of Illinois, 497 U.S. 62, 73 , 76 n.8 (1990).

     

      "Prayer presented:

      "The Appeals Court's Opinion is a micro-procedural analysis devoid of Constitutional considerations.  Nowhere does the Panel address my key point that assessing a punitive sanction for having made a civil RICO pleading actually violates the LAW.[2]

"Upholding the assessment of a FINE of $62,000 (or ANY fine), merely because the evidence did NOT prove a person's claim under 18 U.S.C. § 1964(c) "civil RICO", defeats the stated purpose of the [civil RICO] statute:

"[a] Congressional objective [in enacting civil RICO with treble damages] of encouraging civil litigation not merely to compensate victims but also to turn them into private attorneys general, supplementing Government efforts by undertaking litigation in the public good". Rotella v. Wood et al., 528 U.S. 549 (2000)

 

"It also sets a precedent of punishment for speaking out in a Texas court of law, and is an error of law of such importance to the state's jurisprudence that it should be corrected.  RAP Rule 56.1(a)(5)"

 

Disposition:  Petition for Review DENIED

 

 

Motion for Rehearing -- April 12, 2004

Issue:  FIRST AMENDMENT, DUE PROCESS, STATUTORY LAW ("civil RICO")

 

"Even as this case is in the Supreme Court of Texas, Hon. Ron Chapman, by special assignment, is presiding in this cause in the trial court:

"In the absence of ALL jurisdiction, TWO Senior ("visiting") judges, ONE hearing a motion to recuse the OTHER, ONE from the bench, the OTHER from the witness box, manage to assess a  $125,770 FINE ("sanction") against Birnbaum, a 67 year old non-lawyer, on April 1, 2004! (App. E, centerfold)

 

"Furthermore, at the hearing, Judge Chapman issued the following warning:

"You (now) have the keys on whether there are any further proceedings in this case in the future. Please be aware that any further actions might result in further sanctions."  (App. F) 

 

"Also, this FINE ("sanction") is on top of a an unconditional FINE of $62,885 by senior judge Hon. Paul Banner at a hearing on July 30, 2002 (after final JUDGMENT at the trial of April 11, 2002), where Judge Banner found Birnbaum "well-intentioned", only that he did not see the evidence as showing Birnbaum's civil RICO claim. Birnbaum had of course asked for determination by JURY!

 

"Unconditional punishment (not "coercive") is of course UNLAWFUL by civil process.

 

"All this started with a 1995 fraudulent suit against Birnbaum over a BEAVER dam (not a cause of action!)  The jury said ZERO damages, yet the lawyer wants $10,000 in legal fees, and Judge Chapman has JUST been assigned  to the case!  All "legal fees" and "legal fees" for collecting on fraudulent "legal fees"!

 

"At the time of such suit, Birnbaum, a retired electrical engineer, lived peaceably on his farm in Van Zandt County, taking care of his cows and ninety (90) year old invalid mother, and had only known the courthouse from getting auto license tags.

 

"This Petition (and this Motion for Rehearing) is NOT about mere "error in the judgment of the court of appeals", but about "an error of law committed by the court of appeals of such importance to the jurisprudence of the state as to require correction". (Tex. Gov't. Code § 22.001(a)(6))

 

"When a court of appeals upholds a $62,885 FINE for having made a civil RICO claim, it has committed an error of law against the First Amendment.

"clearly established that filing a lawsuit was constitutionally protected conduct." Rutan v. Republican Party of Illinois, 497 U.S. 62, 73, 76 n.8 (1990), U.S. SUPREME COURT 

 

"When a court of appeals upholds an unconditional FINE of $62,885 imposed by civil process, it has committed an error of law against the Fifth Amendment.

"criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of criminal proceedings, including the requirement that the offense be proved beyond a reasonable doubt.” Hicks v. Feiock, , 485 U.S. 624 (1988), U.S. SUPREME COURT

 

"When a court of appeals finds that a $62,885 FINE "does not meet the requirements of rule 13", yet states that "This error, however, may be waived", it has committed an error of law.

"Waived" means knowingly giving up a right.  I surely did not knowingly give up my right regarding that unlawful fine.

 

"This case is about a pattern of abuse of the judicial system to run over a person who had enough faith in the judicial system to stand up for what is right.

 

"This case is about judicial officers, who know better, yet have chosen "to hell with the law, we got a man that is rocking our boat, and he needs to be stopped, never mind the Constitution".

 

"This is an issue of law that should be addressed by this court, and this case is as good as any to do it.  When high officials start not going by the law, there soon follow the likes of Hitler, Mussolini, Stalin, Milosovich, Saddam, and who knows what next. History tells us such disease has proven fatal.

 

Disposition:  Motion for Rehearing DENIED May 20, 2004. (Exhibit D)
 

 

 

REASONS FOR GRANTING

CERTIORARI TO QUESTION 1:

 

·        Whether a person without a lawyer, filing a pleading in a Texas court under U.S.C. § 1964(c), ("civil RICO"), can be sanctioned as much as $62,885 merely because the evidence is found to be insufficient to show his claim.

 

      Such sanction is patently UNLAWFUL because it is not a civil sanction at all, but a CRIMINAL sanction, imposed on Birnbaum without full due criminal process, including a finding beyond a reasonable doubt:

 

Whether a contempt is civil or criminal turns on the "character and purpose" of the sanction involved. Thus, a contempt sanction is considered civil if it "is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court. U.S. Supreme Court in United Mine Workers v. Bagwell, 512 U.S. 821 (1994)

 

The distinction between civil and criminal contempt has been explained as follows: The purpose of civil contempt is remedial and coercive in nature. A judgment of civil contempt exerts the judicial authority of the court to persuade the contemnor to obey some order of the court where such obedience will benefit an opposing litigant.  Imprisonment is conditional upon obedience and therefore the civil contemnor carries the keys of (his) prison in (his) own pocket. In other words, it is civil contempt when one may procure his release by compliance with the provisions of the order of the court.

 

Criminal contempt on the other hand is punitive in nature. The sentence is not conditioned upon some promise of future performance because the contemnor is being punished for some completed act which affronted the dignity and authority of the court.  The Texas Court of Criminal Appeals, No. 73,986 (June 5, 2002)

 

      So what had Birnbaum done? There was never a warning. The sanction order does not even hint at wrongs, stating only that "the Court is of the opinion that [names] are entitled to prevail on their claim for sanctions".  RCP Rule 13 of course prohibits sanctions "except for good cause, the particulars of which must be stated in the sanction order".  The only clue comes from the transcript of the sanctions hearing at which the trial judge certainly made no finding of "bad faith":

 

"In assessing the sanctions, the Court has taken into consideration that although Mr. Birnbaum may be well-intentioned and may believe that he had some kind of real claim as far as RICO there was nothing presented to the court in any of the proceedings since I've been involved that suggest he had any basis in law or in fact to support his suits against the individuals, and I think -- can find that such sanctions as I've determined are appropriate." Hearing on motions for sanctions, July 30, 2002.     

     

      The answer is that Birnbaum was sanctioned because he "had" made a civil RICO counterclaim in the case TWO years ago, a long ago completed act, that somehow now suddenly "affronted" the judge, making the sanction a CRIMINAL sanction, imposed on him without full criminal process. (Note:  They file counterclaims all the time, but not civil RICO)

 

      Birnbaum had asked for trial by JURY, and the trial judge was no more entitled to weigh the evidence to make a finding that there was no RICO violation, and sanction Birnbaum, than he was entitled to find that there was a RICO violation, and throw the Westfalls in jail.

 

      Furthermore, the right to file a lawsuit, without fear of retaliation, is a fundamental American right:

 

"It was, however, clearly established that filing a lawsuit was constitutionally protected conduct. See Milhouse v. Carlson, 652 F.2 d 371, 37 3-74 (3d C ir. 1981); see also California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972) (access to courts is one aspect of the First Amendment right to petition the government for grievances). Moreover, it was also clearly established that the government cannot retaliate against someone for engaging in constitutionally protected activity in a way that would chill a reasonable person in the exercise of the constitutional right. See Rutan v. Republican Party of Illinois.", 497 U.S. 62, 73 , 76 n.8 (1990).  

     

      The law on this matter is abundantly clear, and was presented to the Texas appeals judges again and again and again.

 

      The judges upholding such $62,885 sanction knew that they were acting in violation of the Constitution, yet did it anyway, and such conduct rises to the level of judicial terrorism and a threat to the security of America. 

 

      This Court granting certiorari will provide strong incentive to Texas judges to go by the law.
 

 

 

REASONS FOR GRANTING

CERTIORARI TO QUESTION 2:

 

·        Whether such person's civil RICO claim can be kept from the jury, and the TRIAL JUDGE himself just FIND that the evidence does NOT indeed show such civil RICO claim as pleaded, and impose such sanction of as much as $62,885?

 

      The law on this was presented to all the judges again and again, and is abundantly clear. The Rules and the law do not allow a judge to weigh the evidence to grant summary judgment on civil RICO claims.

 

"Material issues of genuine fact existed with respect to existence of an enterprise as defined by this chapter, association of defendant printing company with such enterprise, association of the alleged enterprise with organized criminal activity, the intent and knowledge of defendant concerning the underlying predicate acts and the existence of injury caused by alleged violation of this chapter, precluding summary judgment in favor of defendant in action alleging the kickback scheme.  Estee Lauder, Inc. v. Harco Graphics, Inc., D.C.N.Y.1983, 558 F.Supp.83.

 

      The judges upholding such summary judgment and $62,885 sanction knew that they were acting in violation of the Constitution, yet did it anyway, and such conduct rises to the level of judicial terrorism and a threat to the security of America.

 

      This Court granting certiorari will provide strong incentive to Texas judges to go by the law.
 

 

 

REASONS FOR GRANTING

CERTIORARI TO QUESTION 3:

 

·        Whether the Texas Supreme Court in upholding such $62,885 sanction sets a dangerous precedent that is in conflict with the purpose of the civil RICO statute.

 

The law on this was presented to all the judges again and again, and is abundantly clear:

 

"Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee." 18 U.S.C. § 1964(c) "civil RICO"

 

"[a] congressional objective [in enacting civil RICO with treble damages] of encouraging civil litigation not merely to compensate victims but also to turn them into private attorneys general, supplementing Government efforts by undertaking litigation in the public good". Rotella v. Wood, 528 U.S. 549 (2000).

 

      The judges striking down Birnbaum's civil RICO claim, and even punishing him for it, knew that they were acting in violation of the law, yet did it anyway, and such conduct rises to the level of judicial terrorism and a threat to the security of America.

 

      This Court granting certiorari will provide strong incentive to Texas judges to go by the law.  

 

 

 

REASONS FOR GRANTING

CERTIORARI TO QUESTION 4: 

 

·        Whether the judges upholding such $62,885 sanction knew that they were acting in violation of the Constitution, yet did it anyway, and whether such conduct rises to the level of judicial terrorism and a threat to the security of America.

 

      The Texas judges, from the trial court to the supreme court, were briefed again and again and again on the constitutional issues presented in this petition.

 

      They knew that they were acting in violation of the law, yet did it anyway, and such conduct rises to the level of judicial terrorism and a threat to the security of America.

 

      This Court granting certiorari will provide strong incentive to Texas judges to go by the law.
 

 

CONCLUSION

 

      This petition is about FREE SPEECH, Fifth Amendment DUE PROCESS, and STATUTORY LAW.

 

The Texas 294th District Court, the Texas Fifth Court of Appeals, and the Texas Supreme Court, using various Texas legal procedures and doctrines,  have decided an important federal question in a way that conflicts with relevant decisions of this Court.

 

      This $62,885 sanction judgment at issue is NOT a matter of an erroneous ruling or finding, NOT with all the briefing and petitions for rehearing that went to the Texas courts, as shown above, but an indication of a more systemic problem and pattern of disregard of constitutional rights and due process, rising to the level of an "important issue of law".

 

_____________________

 

      It is not often, that a case of such gross abuse of the judicial system is so clearly documented, with NO damages of ANY kind at the bottom, only "legal fees" and "legal fees" for collecting on fraudulent "legal fees".

      If this Court does not act on a case such as this, the abuse of our judicial system will go on and on and on.

      As an example, I provide the latest "case law" by the Texas Fifth Court of Appeals, in which they blithely make up the "facts":

 

"The rules of appellate procedure require appellant's brief to contain “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(h). An issue on appeal unsupported by argument or citation to any legal authority presents nothing for the court to review. Birnbaum v. Law Offices of G. David Westfall, 120 S.W.3d 470, 477 (Tex. App.-Dallas 2003, pet. filed)"

(Fifth District of Texas at Dallas,

Dorothy Strange v. Continental Casualty Company,

No. 05-03-00348-CV, January 29, 2004)

 

_____________________

 

Respectfully submitted,

 

UDO BIRNBAUM, PRO SE

540 VZCR 2916

Eustace, TX 75124

(903) 479-3929