Discussion 11112007 Commission On Retirement

COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE 2190 S. Mason Road, Suite 201 St. Louis, Missouri 63131 E-mail: jim.smith@ c o u r t s . m o . g o v (314) 966-1007 Facsimile: (314) 966-0076

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COMPLAINT ABOUT A MISSOURI JUDGE OR COURT COMMISSIONER

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Case # 07CY-CV06125 was filed seeking remedy for trespass with injury and trespass on the case as a

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Court of Record 1 proceeding according to the course of the Common Law2 in Clay County, Missouri

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Circuit Court3 and the Honorable Anthony (REX) Gabbert of Division 2 was assigned to hold it.

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The case seeks damages against two private individuals for trespass with violence who were initially

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acting in their office as Kansas City Missouri police officers and who claimant claims vacated their

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office of authority by and through their acts that intruded into plaintiff’s private domain (jurisdiction)

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for the purpose of restraining plaintiff’s right of action without probable cause of attending crime and

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therefore acted in excess of statutory jurisdiction, authority and short of statutory right. As such,

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defendants acted in their own private capacity and under color of State and local Law. Frazier issued 3

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municipal citations to plaintiff to be heard in the municipal court of Kansas City. This suit proceeded 1

A "court of record" is a judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it, and proceeding according to the course of common law, its acts and proceedings being enrolled for a perpetual memorial. Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Metc. Mass., 171, per Shaw, C.J. See, also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688, 689. 2

This action proceeded according to the course of the common law by decree of the sovereign and his suit and as described generally in Koffler, "COMMON LAW PLEADING," page 80,and by Stephen, A Treatise on the Principles of Pleading In Civil Actions, c. I, Of the Proceedings in An Action, from Its Commencement To Its Termination, 59, 60 (3rd ed. by Tyler, Washington, D. C. 1893). 3

COURT. An agency of the sovereign created by it directly or indirectly under its authority, consisting of one or more officers, established and maintained for the purpose of hearing and determining issues of law and fact regarding legal rights and alleged violations thereof, and of applying the sanctions of the law, authorized to exercise its powers in the course of law at times and places previously determined by lawful authority. [Isbill v. Stovall, Tex.Civ.App., 92 S.W.2d 1067, 1070; Black's Law Dictionary, 4th Edition, page 425]

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against Frazier and Roth in their private capacities on that premise. All Documents filed in this case

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by plaintiff are testimony and offers of proof as if sworn to under affirmation in that proceeding

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according to the course of the common law, all evidence is in the filed papers and plaintiff has signed

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in verification thereto.

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Simultaneously, the action filed by Frazier proceeded in the Municipal Court of Kansas City: Judge

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Williams of court room A. Duff answered those charges and the clay county court issued an order first

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for the Municipal court to stay it’s proceedings and finally for the Municipal court to dismiss the action

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before it as the matter had been fairly settled in the Clay county court.. Williams ignored both orders

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and proceeded to find Duff guilty of two of the three charges brought.

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The questions to be decided in the Clay county case are: 1. Were plaintiff actions a constitutionally protected activity? If yes; 2. Were there any oaths agreements or applications for benefits, entered into by plaintiff that diminished the protectied nature of that activity? If no; 3. Does the office of police possess authority to restrain by force a constitutionally secured activity? If no; 4. Does the officer vacate the office of trust in order to perform the act of forcefully restraining such activity? If yes; 5. Is the act/restraint a trespass? If yes 6. Is Plaintiff injured by that trespass and due remedy and damages., if yes; 7. Finally, what are the damages. As such, the subject matter to be decided here is law. Defendants have admitted to the facts alleged,

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and the entire case proceeds upon the paperwork. Verbal testimony may be wholly unnecessary in

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order for the court to reach its conclusion especially where defendants have admitted the facts

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complained of by plaintiff, as here.

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All the above was established and proven up by plaintiff in the original action and the attending

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exhibits, filed on 6-15-2007 with return service made on 7-17-2007, as shown on the docket in this

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case and as is typical of a case proceeding according to the course of the common law. The

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Honorable Anthony (REX) Gabbert (ARG) had opportunity to question plaintiff’s construction of the

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court and allocation of jurisdiction since that time but has remained silent on the matter until the 11-7-

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2007 hearing where only by implication did he contest. He merely ignored the substance of the action

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and injected rules and law foreign to that decreed in this case.

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Plaintiff filed, on 8-1-2007, motion to recover property taken by defendants and for stay of municipal

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court proceedings (administrative law) until such time as this superior court decided on the issue of

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plaintiff’s right of action. The right of action issue is the boundary separating appropriate statutory

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enactments (administrative law) and enforcement and enactments that exceed the authority of the state.

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(rule making and legislation that abrogate constitutionally secured rights) Recovery was sought in the

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form of Replevin as decreed in the law of this case4, see Exhibit F. The court5, on 8-1-2007, ordered

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replevin, w/o bond, of plaintiff’s property and stay of the underlying municipal action and for the clerk

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of this court to issue writ of execution on said replevin to be delivered to the sheriff. The court further

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invited the Honorable Anthony (REX) Gabbert and all parties to agree with the courts order or to show

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cause why same should not stand6. All were silent beyond the time allocated and there was no request

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for additional time. There was no objection to the order and there was no action taken by the

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magistrate or the clerk to fulfill the order. Plaintiff contends The magistrate had a duty attendant to his

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office to extend the judicial power to this case at law or to show cause why that power should not be

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extended. ARG did neither and we begin to find out why he did neither in the 11-7-2007 hearing. It

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therefore must be obvious to any reasonable man; the magistrate is injecting what he apparently

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believes is his discretion to operate the court under statutory jurisdiction and rules of court not

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previously decreed in this case. In doing so, plaintiff contends ARG is prejudicing plaintiffs case for

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the benefit of defendants, in that, his acts are against the weight of the evidence, not supported by

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substantial evidence, and erroneously declares or applies the law.

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The very meaning of 'sovereignty' is that the decree of the sovereign makes law. [American Banana Co. v. United Fruit Co., 29 S.Ct. 511, 513, 213 U.S. 347, 53 L.Ed. 826, 19 Ann.Cas. 1047.] 5 A "court of record" is a judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it, and proceeding according to the course of common law, its acts and proceedings being enrolled for a perpetual memorial. Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Metc. Mass., 171, per Shaw, C.J. See, also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688, 689. 6 “Further, the magistrate, plaintiff, and defendants are invited to each file and serve on all other interested parties a brief no later than ten (10) days after receipt of this order to show cause to this court why this order should not take effect or should be modified and notice of intent to file said brief must be filed within three (3) days of receiving this order either by email or by fax or by filing same into the record of this case. The court, mindful of the rights of the parties and the importance of fair play, will liberally construe the arguments presented.”

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Defendant filed its first motion to dismiss for failure to state a claim, which was marked received by

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the clerk 8-20-2007 with copies in the case file marking it filed on 8-16-2007. Plaintiff has a certified

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copy of the entire case file through 8-16-2007 but this document is not included therein. Defendants

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second motion to dismiss replevin was filed 9-6-2007.

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The Court issued its order denying defendants first motion to dismiss and judgment in default on 8-24-

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2007, which included the paragraph shown in FN6, All were silent beyond the time allocated and there

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was no request for additional time.

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Plaintiff rebutted both Defendants motions to dismiss on 9-11-2007

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The court denied both defendants motions for cause shown on 9-11-2007 with the paragraph seen in

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FN6 thereon. All were silent beyond the time allocated and there was no request for additional time.

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The court then issued a second command on 9-12-2007, entitled “PRECAEPE”, for the court clerk to

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issue writ of execution on the stay order and the replevin order including a similar paragraph as in

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FN6, but adding clerk thereto. All were silent beyond the time allocated and there was no request for

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additional time. The clerk, magistrate or the parties took no action.

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Plaintiff, on 10-10-2007 noticed hearing for 10-17-2007, or as soon thereafter as the court could hear

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it, for case management conference. The filing was returned to plaintiff by Division 2 clerk who told

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plaintiff she does not set hearings that way. Further that plaintiff must contact clerk and get a hearing

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date before noticing the hearing. Plaintiff got the new date and re-noticed the hearing for 11-7-2007.

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Note: it was during this conversation that plaintiff was first made aware of an undercurrent functioning

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in the circuit suggesting that plaintiff was a belligerent. The clerk commented ‘you have been

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belligerent since the first time you came into this circuit’. This comment prompted plaintiffs next

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filing, “Jurisdictional Statement-Restatement from the Action” that being an attempt to explain what

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the clerk and others were obviously taking as belligerence.

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On the day of the hearing all were present and the record will show: The Honorable Anthony (REX)

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Gabbert of Division 2 called this case. As we rose to take our positions the bailiffs (2) closely

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surrounded the bench and one denied the Special Master appointed in this case into the bar. Plaintiff

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and MAAG proceeded to the bench where the Honorable Anthony (REX) Gabbert of Division 2 asked

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MAAG to present arguments on defendants motions to dismiss. Plaintiff objected declaring the court

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had already ruled on those motions and that they had been denied. Plaintiff further declared the

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hearing was on plaintiff’s motion for case management hearing. The Honorable Anthony (REX)

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Gabbert declared ‘it was not, that he didn’t do such hearings, that the hearing was on defendants

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motions to dismiss’. Plaintiff objected and asked if the Honorable Anthony (REX) Gabbert of

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Division 2 had read the documents filed in this case to which he responded that he had read all.

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During the hearing, the bailiffs appeared to make an uncommon effort to hover close around plaintiff.

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The Honorable Anthony (REX) Gabbert of Division 2 thereafter adjourned the hearing saying ‘he

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would take the motions under consideration.’ Plaintiff took the hovering activity of the two bailiffs as

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some evidence that the clerks belief in plaintiffs belligerence was shared by ARG and others in the

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circuit and that such unfounded belief serves to prejudice plaintiff.

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On 11-8-2007 an order purporting to originate by the court and stating “you are hereby notified that the

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“court” duly entered the following: 08 Nov 2007 dismiss by Ct w/o prejudice – upon review of the

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court, defendants motion to dismiss plaintiff’s petition are granted and cause is dismissed for cause as

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stated in both defendant’s motions. Clerk to notify plaintiff and defendants attorney. ARG”. It

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therefore must be obvious to any reasonable man, the magistrate is injecting what he apparently

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believes is his discretion to operate the court under statutory jurisdiction (administrative law) and rules

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of court not previously decreed in this case. In doing so, plaintiff contends ARG is prejudicing

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plaintiffs case for the benefit of defendants, in that, his acts are against the weight of the evidence, not

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supported by substantial evidence, and erroneously declares or applies the law.

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The court, on its own motion, thereafter filed in this case a writ of error Quae Coram Nobis Residant

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vacating the hearing on defendants motion for cause shown and reversing the resulting magistrates

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order entered onto file and docket of this case. The court, further, admonished the magistrate not again

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to issue any ruling order or judgment respecting the instant case that did not have prior agreement by

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the court and further warning of contempt proceedings should the magistrate fail to adhere thereto. In

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addition, the court admonished the clerk for accepting the magistrate’s order of dismissal and placing it

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in the case file and on the docket of this case without leave of this court to do so.

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IN SUMMARY

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The entire record will show ARG’s belief, by implication that plaintiff possesses of no right to life,

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liberty or property except as the State or its subdivisions define and declare. Such would not be

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unalienable in nature and therefore must be a void assertion in that all would be rule making or

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legislation abrogating rights secured by the controlling constitutions in opposition to Miranda, Hale v

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Henkel, Chisholm v Georgia, Yick Wo, Chicago v Collins, and countless other cases that declare the

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unalienable nature of plaintiff’s unalienable right of action. Further, ARG did so without there being

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one shred of evidence in the record of this case that the state or its subdivisions possessed higher title

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to plaintiffs life, liberty and property or that plaintiff had otherwise lawfully consented to such state

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authority. As such, ARG could only have made his decision from his own knowledge or belief which

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in and of itself voids his acts. Obviously, the magistrate is injecting what he apparently believes is his

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discretion to operate the court under statutory jurisdiction (administrative law) and rules of court

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foreign to and not previously decreed in this case, all of which would be administrative law not

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common law. In doing so, plaintiff contends ARG is prejudicing plaintiff and his case for the benefit

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of defendants, in that, his acts are against the weight of the evidence, not supported by substantial

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evidence, and erroneously declares or applies the law.

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Plaintiff has no problem with an “out in the open” and honest descent to his claims that bring about

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evidence and proof in support of arguments, but he vigorously objects to the innuendo and acts by

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implication that obviously seek to discredit said claims without proof (acts of despots). Those acts are

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not acts of an honest and respectable government or judiciary and must breach the controlling cannons

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in numerous ways. Plaintiff will leave this commission to identify the specific breaches being

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complained of here.

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Finally, the commission is informed that there is no appeal from the decision of a court of record

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proceeding according to the course of the common law. Therefore, plaintiffs only recourse to the acts

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complained of here are with this commission or in the federal courts under title 18 ss241 or 2.

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Plaintiff does not wish to be at odds with this judiciary but only seeks fairness, respect and open

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discourse in pursuit of justice and protection for the freedoms this judiciary is oath bound to protect.

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Wherefore, plaintiff, having no interest in arguing with the 7th judicial circuit when that argument

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diminishes his real claims against defendants, and not wishing to start contempt proceedings against

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ARG and the Court Clerk, asks this commission to reign in this out of control judicial officer so that

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further waste of the scarce judicial resource is unnecessary and so that fairness and justice can prevail

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“out in the open” for all to see.

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Respectfully submitted

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William Duff

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816-429-5038

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[email protected]

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108 NW 101 Pl Kansas City, Mo 64155

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