Note: Original document was a 9 1/4 by 6 inch booklet, as
required, with printing on front and back of each page, text 4 inch wide by 7
inch deep, with specified font and line spacing, with Index pointing to the
correct pages.
The booklet size gave lots of trouble in printing as it
will not come out of 8 1/2 wide standard paper, but required printing on 11 x 17
paper, front and back, then to be cut to size. Document filed Aug. 16, 2004.
No. 04 - 519
=========================================
In The
Supreme Court of the
_____________________
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
_____________________
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
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
THE PARTIES
Udo Birnbaum Udo Birnbaum, Pro Se
Petitioner 540 VZCR 2916
The Law Offices of Frank C. Fleming
G. David Westfall, P.C. 6611 Hillcrest Ave. #305
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
The Texas Supreme Court last denied the
appeal for rehearing on
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
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
Note:
State courts have concurrent jurisdiction to consider civil claims arising
under RICO. Tafflin v. Levitt, 493
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
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,
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
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
In essence, the
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 --
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 -
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 --
Issue: DUE PROCESS, STATUTORY LAW (right to make "civil RICO" claim)
The issues as presented to the
"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 294th 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 294th 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