No. 04-0078
IN THE SUPREME COURT OF
UDO BIRNBAUM, Petitioner,
vs. VERIFIED
MOTION
THE LAW OFFICES OF G. DAVID
WESTFALL, P.C., et al., Respondents
On appeal from the
Trial court: 294th
MOTION FOR REHEARING
1. 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
2. Furthermore,
at the hearing, Judge Chapman issued the following warning (Exhibit 2):
"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."
3. Birnbaum
has NO means to appeal the new sanctions in this cause!
4. 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. (Exhibit 3
first page second page) .
Birnbaum had of course asked for determination by JURY!
5. Unconditional
punishment (not "coercive") is of course UNLAWFUL by civil
process.
6. 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 (Exhibit 4) to the case! All
"legal fees" and "legal fees" for collecting on fraudulent
"legal fees"!
7. 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.
Facts
Details among
the hereto attached documents
8. This
whole matter grew out of a dispute over a BEAVER
dam. My neighbor trapped and killed eleven of the things, dynamited their dam,
flushed the whole mess down on me, bulldozed the whole area, then got himself a
shyster lawyer, and sued me under the Texas Water Code, claiming that I had, as
a person, built a dam, and was causing "sand, driftwood, and debris"
to wash onto my neighbor, who was
entirely upstream at that!
9. At
the trial the lawyer kept flapping about beavers. When I tried to tell the jury
what I was hauled into court for, namely for violating the Texas Water Code,
the judge ruled that I could not tell the jury:
THE COURT: " They
can't be -- The documents can't be given to you. They can't be read to you, and they
can't be told to you. Now, Mr. Birnbaum has persisted in talking about
those documents, and talking about my rulings, and talking about what he refers
to as -- I guess, procedures or rules of procedure.
"Mr. Ray has now raised a concern, which I
frankly share, that because of the way -- because of the last few things that
Mr. Birnbaum has said, that you may get the idea that either the Plaintiff
or the Court is trying to hide something from you. Now, I don't know how
really to go much further, except to say that what these documents are, are
what are called pleadings.
"To make a pleading, you put a piece of
paper in a typewriter and you type on it anything you want to -- And you
come down to the courthouse. You give it to this lady right over here, the
District Clerk. She puts a file stamp on it. It's a pleading. The law says that
pleadings are not evidence. They are the very allegations that you've been
summoned down here to address.
That is exactly what the lawyer had done,
"put a piece of paper in a typewriter", and made the whole thing up.
10. Along
comes a big-time Dallas lawyer, G. David
Westfall, and talks me into paying him a non-refundable $20,000 to sue
everybody, including the district judge, under the civil racketeering statute,
18 U.S.C. § 1964(c). But the Dallas
federal court dismisses the case under really weird circumstances, like a
judgment that stays discovery and authorizes the amendment of the
pleading, and I fire the lawyer and appeal the case myself, and wave bye-bye to
my non-refundable $20,000 retainer.
11. Then
about a year later, G. David Westfall, in the name of a "The Law Offices
of G. David Westfall, P.C." suddenly sues me (this case), claiming an
unpaid OPEN ACCOUNT of $18,121.10 for "legal services". There of
course was no sale and delivery as required as elements in a suit
on a sworn account. Neither was there a contract, not with a $20,000
retainer, and the lawyer reserving the "right to terminate" for "your [Birnbaum] non-payment of fees or
costs".
12. I
make claims under civil RICO, and ultimately get FINED $62,885 for my claim,
and now this FINE of $125,770 on April 1, 2004.
Further details are to be found among the documents attached at the end
of this Motion for Rehearing:
Exhibit 5, Letter 10-21-03 to Judge
Banner, "What is going on?"
13. The
$62,885 Order on Motions for Sanction had provided NO particularity at all, as
required by RCP Rule 13, and the court reporter had caught Judge Banner's
finding that I was "well-intentioned".
This document shows the ex-parte in the
trial court as the case was in the appeals court, and gives the basis of
my motion to recuse, to STOP opposing lawyer Frank C. Fleming and Judge Banner
communicating ex-party and just making things up.
Exhibit 6, Complaint for
Declaratory Relief - Tyler Federal Court
14. This
document details the circumstances surrounding the $62,885 sanction by Judge
Banner, and why it is unlawful, because it is not "coercive" at all,
but unconditional, for a completed act, namely having made a civil RICO claim
two years earlier.
This document provides the law to show
that filing a lawsuit is constitutionally protected conduct.
This document is also included because at
the hearing on "Motion to Recuse", at which I was sanctioned the
$125,770, opposing lawyer was trying to, and succeeded in painting me as some
sort of monster, for "suing Judge Banner", when all I was seeking was
declaratory relief.
Exhibit 7, Petition for Review -
Less Appendix thereto
Attached for handy reference is my Petition
for Review.
CONCLUSION
See Exhibit 7 for details
16. 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[1]
to the jurisprudence of the state as to require correction". (Tex. Gov't.
Code § 22.001(a)(6))
17. 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
18. 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
19. 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.
PRAYER
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 to 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.
WHEREFORE,
petitioner Birnbaum moves that this honorable Court reconsider his Petition for
Review, hear this case, and send a clear message that NO ONE is above the law,
not even judges.
Sincerely,
__________________
Udo Birnbaum, Pro
Se
540 VZ CR 2916
Eustace, Texas 75124
(903) 479-3929 phone and fax
VERIFICATION
STATE
OF TEXAS
COUNTY
OF VAN ZANDT
Before
me, a notary public, on this day personally appeared Udo Birnbaum, known to me
to be the person whose name is subscribed to above, and being by me first duly
sworn, declared that all the statements in the above complaint are true and
correct to the best of his ability, and that the attached exhibits are true and
correct copies of the originals (except for obvious mark-ups).
___________________
Udo Birnbaum
Given under my hand and seal of office this _12__
day of April, 2004
_________________________
Notary
in and for The State of Texas
Certificate of Service
This
is to certify that on this the _12___ day of April, 2004 a copy of this
document, was sent by regular mail to attorney Frank C. Fleming at PMB 305,
6611 Hillcrest Ave., Dallas Texas 75205-1301.
___________________
Udo Birnbaum
[1] The law now provides that our general appellate jurisdiction extends only to those cases where an error of law committed by the court of appeals is of such importance to the jurisprudence of the state as to require correction (Tex. Gov't. Code § 22.001(a)(6)). No longer is any error in the judgment of the court of appeals sufficient. From TomPhillips.com.