MaryJane Duchene v. W.St.Paul,MN

United States District Court

State of Minnesota

City of West St. Paul, Plaintiff, Notice of and Removal of Dakota County

District Court Criminal Case on Groundsvs. of Judicial Prejudice and Violations of

14th Amendment Due Process Rights.

Mary Jane Duchene, Defendant

Federal Court File no.___________

Dakota County Citation no. 3-441797

Dakota County Court file: 19WS-CR-09-

15734

TO: Dakota County District Court, Attorney for the City of West St. Paul

The undersigned removed this to US District Court BY VIRTUE OF 28 U.S.C. 1443;

Any of the following ... criminal prosecutions, commenced in a State court

may be removed by the defendant to the district court of the United States

for the district and division embracing the place wherein it is pending:

(1) Against any person who is denied or cannot enforce in the courts of

such State a right under any law providing for the equal civil rights of

citizens of the United States, or of all persons within the jurisdiction

thereof[.]

on the following grounds:

1) This Dakota County criminal action is observably a malicious prosecution by

the plaintiffs in that action and the plaintiffs failed to comply with the legal process

required by law and the Fourteenth and Fifth Amendment of the US Constitution,

by stating facts which comprise a criminal action, in continuing prosecution, which is

shown in the selected court documents attached hereto.

That established US Supreme Court requirements as to required

specificity of a criminal accusation, see. e.g. United States v. Cruikshank,

92 U.S. 542 (1876), quoted and affirmed in Russell v. United States, 369

U.S. 749 at 763-765, which in turn is cited with approval in State v. Gross,

387 N.W. 2d 182 at 189 (Minn. App. 1986).

That the right to a specific accusation including separate counts for1

distinct offenses charged has been incorporated by the fourteenth

amendment to the United States Constitution. See: e.g. Cole v.

Arkansas, 333 U.S. 196 at 201 (1942), and Faretta v. California, 442 U.S.

806 at 818(1975).

The plaintiffs have tried to allege that a police officer, allegedly hear a barking

dog noise at my property, from a distance of over 200 feet, when scientific evidence

clearly shows it would be impossible to identify such a sound, or even hear it, from

such a distance, because sound diminished by about 75% at a distance of 200 feet or

sixty meters, SEE SOUND CALCULATOR:

http://www.sengpielaudio.com/calculator-distance.htm.

The failure to withdraw the criminal complaint, AND INSTEAD RELENTLESSLY

PURSUE MALICIOUS PROSECUTION, shows the plaintiffs are relying on a failure

of due process and fairness in the Dakota County Courts and there is obvioulsy the

potential for progressively more insane criminal accusations to transpire in future

because of this case.

2) The plaintiff have done this as part of a pattern of misconduct which has

occurred over a period of more than fifteen years.

3) The defendant cannot get a fair trial in Dakota County, as detailed in the

select Dakota county court documents attached hereto, as there has been a hostile

history with the Dakota County.

Federal law requires the automatic disqualification of a Federal judge under certain

circumstances.

In 1994, the U.S. Supreme Court held that "Disqualification is required if an objective

observer would entertain reasonable questions about the judge's impartiality. If a judge's

attitude or state of mind leads a detached observer to conclude that a fair and impartial

hearing is unlikely, the judge must be disqualified." [Emphasis added]. Liteky v. U.S., 114

S.Ct. 1147, 1162 (1994).

Courts have repeatedly held that positive proof of the partiality of a judge is not a

requirement, only the appearance of partiality. Liljeberg v. Health Services Acquisition

Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988) (what matters is not the reality of bias or prejudice

but its appearance); United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985) (Section 455(a)

2

"is directed against the appearance of partiality, whether or not the judge is actually

biased.") ("Section 455(a) of the Judicial Code, 28 U.S.C. 455(a), is not intended to protect

litigants from actual bias in their judge but rather to promote public confidence in the

impartiality of the judicial process.").

That Court also stated that Section 455(a) "requires a judge to recuse himself in any

proceeding in which her impartiality might reasonably be questioned." Taylor v. O'Grady,

888 F.2d 1189 (7th Cir. 1989). In Pfizer Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972), the Court

stated that "It is important that the litigant not only actually receive justice, but that he

believes that he has received justice."

The Supreme Court has ruled and has reaffirmed the principle that "justice must satisfy the

appearance of justice", Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038 (1960), citing

Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13 (1954). A judge receiving a bribe from

an interested party over which he is presiding, does not give the appearance of justice.

"Recusal under Section 455 is self-executing; a party need not file affidavits in support of

recusal and the judge is obligated to recuse herself sua sponte under the stated

circumstances." Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989).

Further, the judge has a legal duty to disqualify himself even if there is no motion asking for

his disqualification. The Seventh Circuit Court of Appeals further stated that "We think

that this language [455(a)] imposes a duty on the judge to act sua sponte, even if no motion or

affidavit is filed." Balistrieri, at 1202.

Judges do not have discretion not to disqualify themselves. By law, they are bound to follow

the law. Should a judge not disqualify himself as required by law, then the judge has given

another example of his "appearance of partiality" which, possibly, further disqualifies the

judge. Should another judge not accept the disqualification of the judge, then the second

judge has evidenced an"appearance of partiality" and has possibly disqualified himself/

herself. None of the orders issued by any judge who has been disqualified by law would

appear to be valid. It would appear that they are void as a matter of law, and are of no legal

force or effect.

Should a judge not disqualify himself, then the judge is violation of the Due Process Clause

of the U.S. Constitution. United States v. Sciuto, 521 F.2d 842, 845 (7th Cir. 1996) ("The

right to a tribunal free from bias or prejudice is based, not on section 144, but on the Due

Process Clause.").

Should a judge issue any order after he has been disqualified by law, and if the party has

been denied of any of his / her property, then the judge may have been engaged in the

Federal Crime of "interference with interstate commerce". The judge has acted in the

judge's personal capacity and not in the judge's judicial capacity. It has been said that this

judge, acting in this manner, has no more lawful authority than someone's next-door

neighbor (provided that he is not a judge).

However some judges may not follow the law.

If you were a non-represented litigant, and should the court not follow the law as to

non-represented litigants, then the judge has expressed an "appearance of partiality" and,

under the law, it would seem that he/she has disqualified him/herself.

However, since not all judges keep up to date in the law, and since not all judges follow the

law, it is possible that a judge may not know the ruling of the U.S. Supreme Court and the

other courts on this subject. Notice that it states "disqualification is required" and that a

judge "must be disqualified" under certain circumstances.

3

The Supreme Court has also held that if a judge wars against the Constitution, or if he acts

without jurisdiction, he has engaged in treason to the Constitution. If a judge acts after he

has been automatically disqualified by law, then he is acting without jurisdiction, and that

suggest that he is then engaging in criminal acts of treason, and may be engaged in extortion

and the interference with interstate commerce.

Courts have repeatedly ruled that judges have no immunity for their criminal acts. Since

both treason and the interference with interstate commerce are criminal acts, no judge has

immunity to engage in such acts.

4) The defendant’s First Amendment rights are also being abused by this

action as this action appears to be retaliation by the City of West St. Paul Attorney,

for speaking out on disability issues, via a web site, relevant to Alice Krengel, as the

citation was issued one week after the Minnesota Supreme Court ruled against that

City Attorney, and in favor of Ms. Krengel.

RELIEF REQUESTED

1. AN INJUNCTION PROHIBITING THE CITY OF WEST ST. PAUL FROM

CONTINUING THIS MALICIOUS PROSECUTION, AND CONTINUING TO

SOLICIT AND ENGAGE IN DUE PROCESS VIOLATIONS IN THIS ACTION.

2. DAMAGES (INCLUSIVE BUT NOT LIMITED TO ACTUAL, PUNITIVE,

AND EXEMPLARY) FOR ENGAGING IN A LONG TERM PATTERN OF

HARASSMENT AGAINST THE DEFENDANT, FOR AN UNSPECIFIED AMOUNT.

January 11, 2010

Respectfully Submitted:

Mary Jane Duchene, BA, BS

1144 Ottawa Avenue

West St,. Paul, MN 55118

Fax: 651 457 4376

4

MariJaynDuchene@aol.,com

http://www.angelfire.com/mn3/advoca

te6/2009dog/wspnoise.html

5

Search: nmlkji The Webnmlkj Angelfire Report Abuse « Previous | Top 100 | Next »

homeowners inshomeowners inshomeowners inshomeowners ins share: del.icio.us | digg | reddit | furl | facebook

West St. Paul, Minnesota, RE: Alleged Noise Violations

“Once you eliminate the impossible, whatever remains, no matter how improbable, must be the truth.

Sr. Arthur Conan Doyle

Calculator for determining amount sound diminishes with distance:

http://www.sengpielaudio.com/calculator-distance.htm.

Application for Public Defender: http://www.mncourts.gov/ruledocs/criminal/forms/RCRPform47.pdf

FORM

http://www.mncourts.gov/documents/0/Public/Rules/Crim_Rules__APPENDIX_OF_FORMS_eff_1006.htm

Citation, 7/24/2009: LINK

Demand Long Form Complaint LINK

Ads by Google

MN Court Reporting Certified LiveNote Reporters. Complex litigation our specialty. www.IntegrityCR.com

Wilson Law Group Personable & aggressive lawyers who fight for you. Free consultation. www.wilsonlg.com

$39 Moving Helpers Fast, experienced movers to help you move. www.LocalMotion.com

Retail Pet ID Tag ProgramVIP Patented Tag & Collar Engraver Affordable. Highest quality tags!www.vipengravers.com

Page 1 of 10West St. Paul, Alledged Noise Violations

1/18/2010http://www.angelfire.com/mn3/advocate6/2009dog/wspnoise.html

Long Form Complaint 7/31/2009 LINK

Initial Motion to Dismiss, inclusive long form complaint provided

LINK

Motion to Vacate and Reverse LINK

WARRANT LINK

Continuance LINK

MOTION TO DISMISS, November 25, 2009 LINK

REQUEST FOR JUDICIAL REVIEW, PREJUDICE, December 09, 2009

LINK

MOTION FOR ORDER COMPELLING RELEASE OF

EXCULPATORY EVIDENCE, December 16, 2009

LINK

Memoradum Support Motion to Dismiss of 11/25/2009, January 13, 2010

LINK

SUPPLEMENTAL MEMORANDUM SUPPORTING DECEMBER 16, 2009 MOTION FOR ORDER COMPELLING RELEASE OF EXCULPATORY EVIDENCE, January 14, 2010

LINK

MOTION FOR SUMMARY ORDER COMPELLING RELEASE OF EXCULPATORY EVIDENCE, January 17, 2010

LINK

REMOVAL TO FEDERAL COURT, JANUARY 11, 2010

Mary Jane Duchene Plaintiff: City of West St Paul Defendant: Mary Jane Duchene Case Number: 0:2010cr00012

LINK



Filed: January 13, 2010 Court: Minnesota District Court Office: DMN Office [ Court Info ]



of 10West St. Paul, Alledged Noise Violations


Front Row (left to right): Police Officer John Reynold, Officer Jennifer Hobbs, Sgt. Margaret SchultAudra Rawlings, Officer Elizabeth Schult, Officer Joey McCollum, Officer Don Weber, Police Sergeant

Tom Fangel.

http://www.ci.west-saint-paul.mn.us/index.asp?Type=B_LIST&SEC={5AB2A4C2-6052-4911F1B-3C51575DB80A}#{F9B67795-70B5-4335-B2BE-77C50FD85B54}

"Lost/Found Pets

If a pet has been found, and the pet has a license tag, call the West St. Paul Municipal Center at 651-552-4100. The City has a record of all licenses and owners. You can also inquire about lost

or found pets by calling the petline at 651-322-2323."

Alice Krengel v. City WSP, case won, in Minnesota Supreme Court, one week before July 24, 2009

Supreme Court Decision 7/16/2009

http://www.murderbydiabetes.org/

Precedent, Due Process and Long Form Complaint:

1997 - Dakota County Judge Harvis ruled that prosecution must amend the long form complaint to include both a statement of probable cause

and statement of case, or facts showing basis and justification for the criminal charges.

The prosecution failed to amend the long form complaint and the case was dismissed.

Dakota County Court file T2-97-24334



of 10West St. Paul, Alledged Noise Violations


U.S. Supreme Court, U S v. CRUIKSHANK, 92 U.S. 542 (1875), 92 U.S. 542

COLE V. ARKANSAS, 338 U. S. 345 (1949)



U. S. 818 III This consensus is soundly premised. The right of self-representation finds support in the structure of the Sixth Amendment, as well as in the English and colonial jurisprudence from which the Amendment emerged. A The Sixth Amendment includes a compact statement of the rights necessary to a full defense:"In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."Because these rights are basic to our adversary system of criminal justice, they are part of the "due process of law" that is guaranteed by the Fourteenth Amendment to defendants in the criminal courts of the States. [Footnote 14] The rights to notice, confrontation, and compulsory process, when taken together, guarantee that a criminal charge may be answered in a manner now considered fundamental to the fair administration of American justice -- through the calling and interrogation of favorable witnesses, the cross-examination of adverse witnesses, and the orderly introduction of evidence. In short, the Amendment constitutionalizes the right in an adversary criminal trial to make a defense as we know it. See California v. Green, 399 U. S. 149, 399 U. S. 176 (Harlan, J., concurring).



Site Sponsors

Criminal AppealsFederal Appeals and Habeas Florida Appeals - 904-355-1890 williamkent.com

DUI/DWI?Peterson & Schiks, LLC Free, no-obligation consultations. www.legaldefensemn.com

Howard Family LawDivorce, custody and child support. Schedule a free consultation. www.familiesforwardlaw.com



MaryJane Duchene v. W.St.Paul,MN

Business

Transcript of MaryJane Duchene v. W.St.Paul,MN